Page 111 - ELT_1st August 2020_Vol 373_Part 3

2020 ] BSL LTD. v. COMMISSIONER OF CENTRAL EX. (APPEALS), JAIPUR-II 293

cable in the instant case and we are required to provide the proof regarding
the fact that incidence of duty has not been passed on to the buyers. This
made us severally handicapped to understand nature of allegation sought
to be raised in show cause notice, which render us ineligible to the refund
claim under reference. Since we ourselves are the buyers in the instant case
and the doctrine of unjust enrichment envisaged the direct transfer of bur-
den of duty alongwith the sales of goods to the buyers, therefore, there is
no question of passing of incidence of duty to anyone else. Hope Your
Honour will appreciate the vital question of law and fact involved in the in-
stant case in true prospected and may be pleased to allow the refund claim
which is duly admissible.”
7. It is further contended that authority has observed as under :-
“In the present case, the grey fabric was under provisional assessment as
the yarn captively consumed for weaving of said fabric was also under
provisional assessment, and grey woollen fabrics from weaving division
never sold direct by them, but the same in being processed on job work and
then the processed fabric are ultimately sold to different customers at high-
er rate. Therefore, it is difficult to ascertain that whether “the burden of du-
ty borne on grey woollen fabric has been passed on to the buyer of pro-
cessed fabric or not and they have not produced any proof that themselves
have borne the burden duty paid on grey fabric. The consequential refund
is of the said grey fabric against the finalisation order provisional assess-
ment. Since the assessee has failed to prove that the incidence of duty had
not been borne on to buyer of their processed fabrics. The situation of the
present case exactly fits with the decision of the Hon’ble Supreme Court in
the case of UOI v. Solan Pesticide Pvt. Ltd. Therefore, in view of decision of
the said case, I am of the view that the duty paid on raw material i.e. (“yarn
captively consumed”) & grey fabric have been added to the price of fin-
ished goods i.e. processed woollen fabric, hence incidence of duty have
been passed on to ultimate customers. Therefore, principle of unjust en-
richment is applicable.”
8. He has taken us to the order dated 9-9-2003 Annexure-5 and ulti-
mately, the Tribunal has passed the order dated 25-4-2005 after relying on the
decision in the case of Hindustan Lever Ltd. v. C.C.E., Ghaziabad, 2004 (171) E.L.T.
12 wherein it has been held as under :-
“the authorities below have invoked the above said principle of unjust en-
richment and disallowed the refund claims. The Learned Counsel has pro-
duced the copy of the judgment rendered in the case Hindustan Lever Ltd. v.
C.C.E., Ghaziabad, 2004 (171) E.L.T. 12, wherein it has been observed that
even if the assessments pertain to the financial years prior to the amend-
ment in Rule 9B(5) of the rules, but having been finalized after the amend-
ment, will be governed by the amended provisions of the said Rule. The
case of the appellants squarely stands covered by this ratio of the law.
Therefore, the refund claim of the appellants had been rightly rejected by
applying the principle of unjust enrichment for having passed on the inci-
dence of duty to the ultimate buyers. We do not find any illegality in the
impugned order and the same is upheld. The appeals of the appellants are
dismissed.”
9. Counsel for the appellant has relied on the judgment rendered in the
case of Hindustan Lever Ltd. v. C.C.E., Ghaziabad, 2004 (171) E.L.T. 12 and the

EXCISE LAW TIMES  1st August 2020  111