{"id":173121,"date":"2007-01-25T00:00:00","date_gmt":"2007-01-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-central-excise-vs-ms-birla-corporation-ltd-anr-on-25-january-2007"},"modified":"2018-02-07T06:47:21","modified_gmt":"2018-02-07T01:17:21","slug":"commissioner-of-central-excise-vs-ms-birla-corporation-ltd-anr-on-25-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-central-excise-vs-ms-birla-corporation-ltd-anr-on-25-january-2007","title":{"rendered":"Commissioner Of Central Excise, … vs M\/S Birla Corporation Ltd. & Anr on 25 January, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Central Excise, … vs M\/S Birla Corporation Ltd. & Anr on 25 January, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, S.H. Kapadia<\/div>\n
           CASE NO.:\nAppeal (civil)  1983-1984 of 2004\n\nPETITIONER:\nCommissioner of Central Excise, Jaipur\n\nRESPONDENT:\nM\/s Birla Corporation Ltd. & Anr\n\nDATE OF JUDGMENT: 25\/01\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & S.H. KAPADIA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
Challenge in these appeals is to the judgment rendered
\nby the Customs, Excise and Gold (Control) Appellate Tribunal,
\nNew Delhi, (for short ‘CEGAT’). By the impugned judgment the
\nCEGAT held that the bar of unjust enrichment does not apply
\nto claim for refund in cases where original payments of duty
\nwere made under protest.  Accordingly, the orders passed by
\nthe Central Excise Authorities were set aside.\n<\/p>\n
\tBackground facts in a nutshell are as follows:-\n<\/p>\n
Respondent no.1 was formerly known as M\/s. Birla Jute
\n& Industries Ltd.  unit Chittor Cement Works.  It was
\nengaged in the manufacture of Cement which is classifiable
\nunder Chapter 25 of the Schedule to the Central Excise Tariff
\nAct, 1985 (in short ‘Tariff Act’). It claimed the benefit of rebate
\nof central excise duty under Notification No.36\/87-CE dated
\n1.3.1987 which was denied by the Department.  Thereafter,
\nrespondent no.1 paid duty at the applicable rates under
\nprotest during the period between March 1987 to March 1990.
\nInitially, the respondent no.1 was held to be entitled to the
\nbenefit of the notification in terms of the order dated
\n14.5.1991 passed by the Collector (Appeals), Central Excise.
\nRespondent no.1 by letter dated 29.5.1991 requested the
\njurisdictional Assistant Collector to grant refund in compliance
\nof the order passed by the Collector (Appeals).  Being aggrieved
\nby the order of the Collector (Appeals), Revenue preferred an
\nappeal before the CEGAT which was dismissed.  Authorities
\nwere of the view that respondent no.1 had passed on duty to
\nthe customers and, therefore, notice was issued on 29.4.1994
\nto show-cause as to why the amount of refund should not be
\ncredited to the Consumers Welfare Fund.  By order dated
\n20.12.1994, the Assistant Collector, Central Excise Division,
\nUdaipur, sanctioned the refund claimed but directed that only
\na part of it was to be paid to respondent no.1.  The remaining
\namount was ordered to be credited to the Consumer Welfare
\nFund.  It is to be noted that the total claim of refund was
\nRs.9,70,25,847.60 which consists of the following items:-\n<\/p>\n
(i)
\nExcise duty under refund
\ncharged\/realized from the
\npurchasers.\n<\/p>\n
Rs.1,08,60,620.00\n<\/p>\n
(ii)
\nExcise duty under refund
\nnot charged\/realized from
\nthe purchasers.\n<\/p>\n
Rs.8,60,52,179.00\n<\/p>\n
(iii)
\nExcise duty under refund
\nborne by the unit
\nRs.1,13,048.00<\/p>\n
\tThe Assistant Collector, inter alia, held that the
\nrespondent no.1 had failed to prove that the duty incidence
\nhad not been passed on to the customers.  Respondent no.1
\nfiled an appeal before the Commissioner (Appeals), which was
\ndismissed placing reliance on the decision of this Court in
\nMafatlal Industries Ltd. v. UOI [1997 (89) ELT 247 SC]. It was
\nheld that principle of unjust enrichment would apply to the
\npresent case, since respondent no.1 had passed on the
\nincidence of duty to its customers. Appeals were filed before
\nthe CEGAT by respondent No.1 which relying on the decision
\nof this Court in Sinkhai Synthetics & Chemicals (P) Ltd. v.
\nCollector of Central Excise, Aurangabad<\/a> (2002 (9) SCC 416)
\nheld that the principle of unjust enrichment was not
\napplicable as amount had been paid under protest.
\nAccordingly, the appeals were allowed.  In these appeals the
\nprimary stand of the appellant is that the decision in Sinkhai’s
\ncase (supra) has been held to be not properly decided by a
\nthree-Judge Bench in Commissioner of Central Excise,
\nMumbai-II v. Allied Photographics India Ltd.<\/a> (2004 (4) SCC\n<\/p>\n
34).\n<\/p>\n
\tLearned counsel for respondent no.1 on the other hand
\nsubmitted that the amount was paid provisionally under Rule
\n9-B of the Central Excise Rules, 1944 (in short the ‘Rules’).
\nThe amendment to Section 11-B of Central Excise Act, 1944
\n(in short the ‘Act’) was made on 20.9.1991. In view of position
\nprior to amendment, Section 11-B(3) of the Act, was applicable
\nand  refund was to be granted without an application.\n<\/p>\n
\tLearned counsel for the respondent no.2 has submitted
\nthat pursuant to the orders passed by the Appellate Authority
\nFor Industrial & Financial Reconstruction, New Delhi (in short
\n‘AAIFR’) adjustments have been made and if the order of the
\nTribunal is interfered with that may disturb the arrangements
\nmade.  It has been stated by the respondents that the
\nincidence was not passed on the customers and it has been
\nborne by the assessee and, therefore, Section 11-B of the Act
\nhas no application.\n<\/p>\n
\tBy order dated 13.11.2003 as reported in Commissioner
\nof Central Excise, Mumbai v. Allied Photographics India Ltd.<\/a>
\n(2004 (4) SCC 55), doubting the correctness of the view
\nexpressed in Sinkhai’s case  (supra) reference was made to a
\nthree-Judge Bench. The three Judge Bench in  Commissioner
\nof Central Excise, Mumbai II v. Allied Photographics<\/a> (speaking
\nthrough one of us Kapadia, J.) (2004 (4) SCC 34) held as
\nfollows:-\n<\/p>\n
“(1) Section 11-B was inserted in the Act w.e.f. 17-
\n11-1980. Under Explanation (B)(e) to Section 11-
\nB(l), where assessment was made provisionally the
\nrelevant date for commencement of limitation of six
\nmonths was the date of adjustment of duty as final
\nassessment. Entitlement to refund would thus be
\nknown only when duty was finally adjusted.
\nExplanation (B)(e) referred to limitation in cases
\ncovered by Rule 9-B which dealt with duty paid
\nunder provisional assessment. The said rule started
\nwith a non obstante clause. Rule 9-B was a
\ncomplete code by itself. On compliance with the
\nconditions therein, the proper officer was duty-
\nbound to refund the duty without requiring the
\nassessee to make a separate refund application. The
\nsaid rule, therefore, provided for making of refund.
\nOn the other hand, Section 11-B(1) dealt with
\nclaiming of refund by the person who had paid duty
\non his own accord. In this connection, Section 4 of
\nthe Act is relevant. It dealt with assessment which
\nmeans determination of tax liability. Under the Act,
\nduty was payable by the manufacturer on his own
\naccount. Hence, under Section 1l-B(1), such a
\nperson had to claim refund by making an
\napplication within six months from the relevant date
\nexcept in cases where duty was paid under protest
\nin terms of the proviso. However, even in such
\ncases, the person claiming refund had to pay the
\nduty under protest in terms of the prescribed rules.
\nThus, Section 11-B(1) refers to claim for refund as
\nagainst making of refund by the proper officer under
\nRule 9-B.\n<\/p>\n
(2) On 20-9-1991 Section 11-B underwent a drastic
\nchange vide Central Excises and Customs Laws
\n(Amendment) Act 40 of 1991 (for short “the
\nAmendment Act”). By the Amendment Act, the
\nconcept of unjust enrichment as undeserved profit
\nwas introduced.\n<\/p>\n
(3) According to Statement of Objects and Reasons
\nfor enacting the Amendment Act, the Public
\nAccounts Committee had recommended
\nintroduction of suitable legislation to amend the Act
\nto deny refunds in cases of unjust enrichment. By
\nthe Amendment Act, Section 11-B(3) was amended
\nand clause (e) to Explanation (B) was substituted by
\na new clause (e). However, although clause (e) as it
\nstood prior to 20-9-1991 dealt with the limitation
\nperiod in cases of refund of duty paid under
\nprovisional assessment, the substantive provision
\nfor provisional assessment of duty was Rule 9-B.
\nTherefore, even with the deletion of old clause (e),
\nRule 9-B continued during the relevant period.
\nTherefore, Section 11-B (as amended) applied to
\nclaiming of refunds where the burden was on the
\napplicant to apply within time and prove that the
\nincidence of duty had not been passed on whereas
\nRule 9-B covered cases of ordering of
\nrefund\/making of refund, where on satisfaction of
\nthe conditions, the officer concerned was duty-
\nbound to make the order of refund and in which
\ncase question of limitation did not arise and,
\ntherefore, there was no requirement on the part of
\nthe assessee to apply under Section l1-B. Lastly,
\nRule 9-B referred to payment of duty on provisional
\nbasis by the assessee on his own account and,
\ntherefore, in cases where the manufacturer is
\nallowed to invoke this rule and refund accrues on
\nadjustment under Rule 9-B(5) that refund is on the
\naccount of the manufacturer and not on the
\naccount of the buyer. If one reads Section 11-B on
\none hand and Rule 9-B on the other hand, both
\nindicate payment by the assessee on his own
\naccount and refund becomes due on that account
\nalone.\n<\/p>\n
(4) The Bench found no merit in the stand that
\npayment of duty under protest and payment of duty
\nunder provisional assessment are both “on-account”
\npayments under the Act. There is a basic difference
\nbetween duty paid under protest and duty paid
\nunder Rule 9-B. The duty paid under protest falls
\nunder Section 1l-B whereas duty paid under
\nprovisional assessment falls under Rule 9-B. That
\nSection 11-B deals with claim for refund whereas
\nRule 9-B deals with making of refund, in which case
\nthe assessee has not to comply with Section 11-B.
\nTherefore, Section Il-B and Rule 9-B operate in
\ndifferent spheres. Therefore, the respondent was
\nbound to comply with Section 11-B. In any event,
\nthe application dated 11-2-1997 fell in the category
\nof refund claim being made after finalization of
\nassessment of NIIL and, therefore, Section 11-B had
\nto be complied with in terms of para 104 of the
\njudgment in Mafatlal Industries Ltd. v. Union of
\nIndia<\/a>  [(1997) 5 SCC 536]. Since there was failure to
\ncomply with Section 11-B, the respondent was not
\nentitled to refund.\n<\/p>\n
The basis on which a manufacturer claims
\nrefund is different from the basis on which a buyer
\nclaims refund. The cost of purchase to the buyer
\nconsists of purchase price including taxes and
\nduties payable on the date of purchase (other than
\nthe refund which is subsequently recoverable by the
\nbuyer from the Department). Consequently, it is not
\nopen to the buyer to include the refund amount in
\nthe cost of purchase on the date when he buys the
\ngoods as the right to refund accrues to him at a
\ndate after completion of the purchase depending
\nupon his success in the assessment. Lastly, as
\nalready stated, Section 11-B dealt with the claim for
\nrefund of duty. It did not deal with making of
\nrefund. Therefore, Section I1-B(3) stated that no
\nrefund shall be made except in terms of Section 11-
\nB(2). Section 11-B(2)(e) conferred a right on the
\nbuyer to claim refund in cases where he proved that
\nhe had not passed on the duty to any other person.
\nThe entire scheme of Section 11-B showed the
\ndifference between the rights of a manufacturer to
\nclaim refund and the right of the buyer to claim
\nrefund as separate and distinct. Moreover, under
\nSection 4 of the said Act, every payment by the
\nmanufacturer whether under protest or under
\nprovisional assessment was on his own account.
\nThe accounts of the manufacturer are different from
\nthe accounts of a buyer (distributor).”\n<\/p>\n
\tIn view of what has been stated above, the order of
\nCEGAT cannot be maintained.\n<\/p>\n
But the crucial question is whether the duty element had
\nbeen passed on to the customer.  This is to be factually
\nadjudicated.  We, therefore, remit the matter to the Assistant
\nCollector to decide this matter.  The parties shall be permitted
\nto place materials in support of their respective stand.  We
\nmake it clear that we have not expressed any opinion as to the
\neffect of the adjudication to be made by the Assistant Collector
\nin the proceedings before the AAIFR.\n<\/p>\n
The appeals are accordingly disposed of without any
\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Central Excise, … vs M\/S Birla Corporation Ltd. & Anr on 25 January, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, S.H. Kapadia CASE NO.: Appeal (civil) 1983-1984 of 2004 PETITIONER: Commissioner of Central Excise, Jaipur RESPONDENT: M\/s Birla Corporation Ltd. & Anr DATE OF JUDGMENT: 25\/01\/2007 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-173121","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Central Excise, ... vs M\/S Birla Corporation Ltd. & Anr on 25 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/commissioner-of-central-excise-vs-ms-birla-corporation-ltd-anr-on-25-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner Of Central Excise, ... vs M\/S Birla Corporation Ltd. & Anr on 25 January, 2007 - 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