ORDER
V.K. Agrawal, Member (T)
1. The issue involved in this appeal filed by M/s. Punjab Beverages (P) Ltd. is whether the amount of refund can be sanctioned without producing the duty paying documents by them, and whether the refund is hit by the doctrine of unjust enrichment.
2. Shri J.P. Kaushik, learned Advocate, submitted that the refund claim pertains to the period from 1-3-1970 to 30-9-1974 that there was a dispute regarding inclusion of the freight charges for transporting filled bottles of aerated water from the factory and for transporting empty bottles back to the factory premises; that the Assistant Commissioner allowed the deduction of cost of transportation of excisable goods from assessable value but did not allow the cost of transportation of empty bottles; that finally the Appellate Tribunal vide Order No. 155/91-A, dated 15-3-1991 allowed their appeal for not including the cost of transportation in the assessable value. Subsequently, they filed a refund claim which has been rejected by the Commissioner (Appeals) on the ground that the duty paying documents have not been produced by them and that the refund claim is hit by the doctrine of unjust enrichment.
2. The learned Advocate further submitted that the entire refund claim can be divided into two parts. The first refund claim of Rs. 1,40,113.06 pertains to the period from 1-3-1970 to 16-2-1972; that during this period the appellants had not included the freight charges in the assessable value of the aerated water; that subsequently, the Department had issued two DD-2s for demanding the differential duty on account of transport charges and the same was paid by them by debiting the amount on six different days in their P.L.A.; that in support of their submissions they have enclosed photocopies of DD-2s and relevant extracts of P.L.A. He submitted that in a situation where the demand is made for differential duty and the same is paid by the assessees separately the principle of unjust enrichment does not apply. He relied upon the decision of the Appellate Tribunal in the case of Ester Industries Ltd. v. C.C.E., Meerut, 1999 (35) RLT 696 (Tribunal). He, further, submitted that all the documents are submitted by them along with RT-12 return to the Department and non-production of documents by them at the time of claiming refund is not fatal to the sanction of the claim. He relied upon the decision in the case of Hindustan Tin Works Ltd. v. C.C.E., Meerut, 2000 (115) E.L.T. 830 (Tribunal) wherein it was held that when the department is in custody of original price-list and RT-12 returns, as well as statutory copies of GP-1 forms, “We fail to understand how, in these circumstances, refund claims could be rejected for production of original documents.” The learned Counsel further submitted that the remaining amount of refund claims i.e. Rs. 14,06,177.45 pertains to the period from 17-2-1972 to 30-9-1974 during which period the freight charges were included in the assessable value as per the order passed by the Department. He mentioned that no opportunity was given to them by the Asstt. Commissioner to show that the incidence of duty has not been passed on to the customers and if the opportunity is now provided, the appellants will make efforts to prove their entitlement to the refund claim.
3. Countering the arguments Shri P.K. Jain, learned D.R. submitted that the assessee who is claiming the refund of Central Excise duty paid by him has to produce the copies of the duty paying documents which remained with him so that the same could be defaced; that this is required to be done with a view to safeguard duplicate refund of the duty paid by him. He, further, submitted that the documents submitted to the Department by the assessee are kept with the Department only for a specified period and are destroyed after the expiry of that period. He, therefore, contended that the production of duty paying documents by the assessee is must and in absence of which refund claim is bound to be rejected. Regarding applicability of bar of unjust enrichment, the learned D.R. submitted that as far as refund claim for the first period is involved the bar will not apply; that however, in respect of refund claim for the subsequent period the bar is very much applicable as admittedly the freight charges were added in the assessable value and since the filing of the refund claim sufficient period have elapsed during which the appellants have not produced any proof that the incidence of duty was not passed on to any other person; that immediately after amendment of Section 11B of the Central Excise Act, every assessee who have filed the refund claim was required to show that the incidence of duty has not been passed; and as the appellants have not submitted any evidence so far the refund is hit by the principle of unjust enrichment.
4. We have considered the submission of both the sides. It has not been disputed by the Revenue that the demand for the period from 1-3-1970 to 16-2-1972 was raised by issuing two DD-2s and the duty was paid by the appellants by debiting to P.L.A. on six different dates. It has been held by the Tribunal in the case of Ester Industries (supra) that where the duty is paid by making debit entries in P.L.A. subsequent to the date of clearance of the goods, presumption of Section 12B of the Central Excise Act to the effect that incidence of duty has been passed on to the buyer will not be attracted. The learned D.R. has also fairly conceded this point. Following the ratio of the Tribunal’s decision in the case of Hindustan Tin Works Ltd., referred to above, we hold that non-production of documents by the appellants will not come in their way of getting the refund of the duty. We, therefore, hold that the appellants are entitled to get the refund of the duty amounting to Rs. 1,40,113.06. The remaining amount of refund claim, however, is hit by principle of unjust enrichment as admittedly the incidence of duty has been passed on to the customers. We agree with the learned Commissioner (Appeals) that the appellants have been given ample opportunity to produce the evidence to counter the bar of unjust enrichment which has not been done by them. We, therefore, hold that the remaining amount of refund claim is not to be paid to the appellants.
5. The appeal is disposed of in above terms.
