Cri Pumps (Pvt.) Ltd. Vs. Commissioner of Central Excise, Coimbatore - Court Judgment

I have heard both sides on the appeal against the order of the Commissioner (Appeals) upholding the crediting of the amount of refund claimed by the assessees to the Consumer Welfare Fund on the ground that they had not established non-passing of the incidence of duty to their customers/buyers. There is no dispute that the price at which the goods were cleared from the depot was lesser than the price at which the goods were stock-transferred. The price at which the goods were cleared from the factory to the depot was higher than the price at which the goods were sold from the depot. In this factual background, the decision of the Tribunal in CCE Visakhapatnam Vs Andhra Pradesh Paper Mills Ltd. [2006 (198) ELT 237] holding that question of unjust enrichment does not arise since lower duty was collected from the buyer is squarely attracted. The fact that the invoices did not show the excise duty element separately is not a ground to hold that the refund claim is hit by the bar of unjust enrichment, as it has been held by the Tribunal in the case of CCE Vadodara Vs Alembic Ltd. [2009 (233) ELT 534] that there is no statutory requirement that the commercial invoices should show the break-up of value. The fact that some of the invoices issued from the depot were issued much before the actual date of the clearance from the factory is not sufficient to hold that unjust enrichment bar will operate against the appellants in the absence of any finding that the factory gate invoices were for a lower value than the value shown in the invoices for sale of goods from the depot.

2. In view of the above discussion, and following the ratio of the decisions cited supra, I hold that the assessees are entitled to refund of the amount in question and, accordingly, set aside the impugned order relating to the credit of the refund amount to the Consumer Welfare Fund, and allow the appeal.