Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of C. Ex. vs Caterpillar India Pvt. Ltd. on 26 February, 2004
Equivalent citations: 2004(167)ELT243(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. This is a Revenue appeal against Order-in-Appeal No. 321/2003 (P), dated 15-7-2003 holding that there is no unjust enrichment and the refund claim filed by the assessee of required to be accepted. The learned Commissioner (Appeals) has examined the facts of the case and has examined the evidence to see as to whether the element of duty was passed on to the assessee or not. After due consideration, he has come to a categorical conclusion that unjust enrichment will not be applicable in the instant case inasmuch as the goods were returned and clearance of goods subsequently was also made on payment of duty. The refund was only with regard to second payment for which the buyer has not paid the amount. The Commissioner has noted large number of judgments to allow the claim of the assessee. The same is extracted herein below :-
"In the instant case issue of unjust enrichment has also been raised. Unjust enrichment will not be applicable in the instant case inasmuch as the goods were returned and clearance of the goods subsequently was also made on payment of duty.
In the case of Hindustan Petroleum Corporation Ltd. v. Collector of Customs - 1991 (56) E.L.T. 657 (Tribunal) it was held that "Refund - Limitation - Duty paid twice on the same goods - Time limit computable from the date of excess payment of duty and not from the date of the original payment - Claim having filed within prescribed time limit, not barred by limitation - Section 27 of the Customs Act, 1962 applicable and not Section 13 or 23 ibid".
In the case of Voltas Ltd. v. Collector of Central Excise, Bombay-III - 1994 (70) E.L.T. 385 (Tribunal) it was held that "Refund of duty on duty paid goods -Duty again paid on subsequent removal/clearance - Subsequent payment is duty paid is excess - Refund admissible under the then Clause (e) of Rule 173(1) - "Unjust enrichment" not attracted. Return of duty paid goods - Collector empowered to lay down conditions therefor relatable to procedural aspect but not to period of limitation as Collector incompetent to legislate - Such trade notice not to affect the assessee's right - Rule 173H of Central Excise Rules, 1944 prior to amendment".
In the case of Gujarat Tractor Corporation Ltd. v. Commissioner of Central Excise, Baroda - 2000 (124) E.L.T. 796 (Tribunal) it was held that "Retention in, or bringing into, a factory or warehouse, of duty paid goods - Rule 173H of Central Excise Rules, 1944 not providing any time limit for removal of such goods - Collector cannot impose any condition for removal of such goods within six month by issuing Trade Notices. [para 3] In the case of Commissioner of Central Excise, Indore v. Medi Caps Ltd. - 2002 (140) E.L.T. 469 (Tri. - Del.) it was held that "Refund - Returned goods - D-3 intimation duly sent to Department on receipt of goods in factory and remade goods cleared on payment of duty - Refund claim admissible - Erstwhile Rule 173L of Central Excise Rules, 1944 - Section 11B(2) of Central Excise Act, 1944. (1995 (75) E.L.T. 289 (Tribunal) relied on]. [para 5] In the case of Commissioner of Central Excise, Bangalore v. Nestle India Ltd. -2002 (144) E.L.T. 115 (Tri. - Bang.) it was held that "Refund on returned goods - Appellants clearing consignments on payment of duty, bringing back the rejected consignments back in factory submitting D-3 declaration and clearing the goods reprocessed again on payment of duty - Appellants following the procedure under law, eligible to refund of duty paid in excess - Erstwhile Rule 173L of Central Excise Rules, 1944 - Section 11B of Central Excise Act, 1944. [paras 2, 3] Respectfully following the ratio of the decisions cited supra, I set aside the impugned order of the lower authority and allow the appeal with consequential relief, if any."
2. I have heard learned DR who reiterated the grounds of appeal and submitted that there was clear passing of duty to the buyer and hence it was hit by unjust enrichment. He has attempted to distinguish the judgment as done in the appeal memo and submitted that the judgment do not apply to the facts of the case.
3. Ld. Counsel submits that the fact that buyer has not paid duty which was paid by them is clear on record. The item had suffered duty twice. The second payment is less than the first payment which has been borne by the assessee. Therefore, the Commissioner after due examination of the facts concluded that there was no unjust enrichment. The facts of each case relied is also applicable and not distinguishable.
4. On a careful consideration of the submissions, I notice that the Commissioner has examined the issue in the light of material facts and has come to a categorical conclusion that duty has not been passed on to the consumer and that there is no unjust enrichment. This position of fact is undisputed and cannot be challenged. The citations are also applicable to the facts of this case and is not distinguishable. In that view of the matter, respectfully following the citations noted supra, the impugned order is confirmed by rejecting the Revenue's appeal.