Customs, Excise and Gold Tribunal - Delhi
Swarup Fibre Industries Limited vs Commissioner Of C. Ex. on 30 May, 2000
Equivalent citations: 2000(120)ELT510(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. The issue involved in this appeal filed by M/s Swarup Fibres Industries Ltd., is whether the bar of unjust enrichment will apply in cases where the price has remained the same inspite of increase in the rate of duty.
2. Shri Ashok Sagar, ld. Advocate submitted that the appellants are engaged in the manufacture of Vulcanised Fibre Sheet which was classified by them under Heading 3913.30 of the Central Excise Tariff which was changed by the department to 3920.22 carrying a higher rate of duty. On appeal, the Appellate Tribunal classified their product under Heading 3913.30 and consequently they filed the refund claim which has been rejected on the ground that the incidence of duty has been passed on to the customers. The ld. Advocate submitted that as the price structure after enhancement of the rate of duty has not been changed the excess duty paid by them has been absorved by them and not passed on to the customers. In support of his contention he relied upon the decisions in the case of Commissioner of Customs, Chennai v. New Trade Links reported in 1999 (33) R.L.T. 205 (CEGAT) and Modi Xerox Ltd, v. CCE, Meerut reported in 1999 (35) R.L.T. 77 (CEGAT).
3. Shri Ravinder Babu, ld. DR reiterated the findings of the Commissioner (Appeals) and submitted that since incidence of duty has been passed on to their customers the refund will not be admissible to them as the bar of unjust enrichment will apply.
4. We have carefully considered the submissions of both the sides. We fully agree with ld. Advocate that as no change has taken place in the price structure of the product after increase in the rate of duty, it cannot be said that the incidence of higher rate of duty has been passed on to the customer. The Tribunal has been taking consistently the same view as reported in the decisions relied upon by the ld. Advocate. As the incidence of duty has not been passed on to the customers, the refund of the excess duty is admissible to the appellants and accordingly the appeal is allowed.