" \n \nIN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL \n EASTERN ZONAL BENCH : KOLKATA \n \nREGIONAL BENCH – COURT NO. 1 \n \nCustoms Appeal No. 79541 of 2018 \n(Arising out of Order-in-Appeal No. 142/Pat/Cus/Appeal/2018 dated 03.10.2018 \npassed by the Commissioner (Appeals) of Customs, G.S.T. & C.Ex., Patna, 2nd Floor, \nC.R. Building (Annexe), Bir Chand Patel Path, Patna – 800 001) \n \n \nAPPEARANCE: \nShri Ashwini Kr. Choudhary, Authorized Representative \nFor the Appellant-Revenue \n \nShri Rahul Tangri, Advocate \nSmt. Taniya Roy, Advocate \nFor the Respondent \n \nCORAM: \nHON’BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) \nHON’BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) \n \nFINAL ORDER NO. 75318 / 2025 \n \nDATE OF HEARING: 27.01.2025 \nDATE OF DECISION: 12.02.2025 \nORDER: [PER SHRI ASHOK JINDAL] \n \nThe Revenue has filed this appeal against the \nimpugned order wherein the Ld. Commissioner \n(Appeals) has allowed the refund claim of the \nrespondent by holding that the respondent was able \nto pass the bar of unjust enrichment. \n \nCommissioner of Customs (Preventive) \n5th Floor, Central Revenue Building, Birchand Patel Path, \nPatna – 800 001 \n \n : Appellant \n \n \n \n \n \nVERSUS \n \nM/s. Dabur India Limited \nCorporate Office, Kaushambi, \nGhaziabad – 201 010 \n : Respondent \n\nPage 2 of 8 \n \nAppeal No.: C/79541/2018-DB \n \n \n2. \nThe facts of the case are as under: - \n(i) The Respondent is carrying on business of \nmanufacturing and trading of various ayurvedic \nproducts and are inter alia importing fruit juices \nfrom Nepal which are classifiable under the Tariff \nItem 2202 9020. Additionally, the Respondent is \nalso importing tooth powder by the name of \"Lal \nDant Manjan\" which is classifiable under the \nTariff Item 3306 1010. The said goods are \nimported from Nepal through the Land Customs \nStation at Raxaul. The products manufactured as \nwell as imported by the Respondent are covered \nunder the Notification No. 01/2011-CE (2% \nwithout CENVAT Credit) as well as Notification \nNo. 02/2011-CE (6% with CENVAT Credit). \n(ii) \nIn terms of the decision rendered by the Hon'ble \nSupreme Court in the case of M/s. SRF Limited \nv. Commissioner of Customs, Chennai reported \nin 2015 (315) E.L.T. 607 (S.C.), for the period \n09.05.2015 onwards, the Respondent opted to \npay CVD 6% under Notification No. 02/2011-CE \n‘under protest’ though it was eligible for benefits \nunder Notification No. 01/2011-CE. \n(iii) Thereafter, \nthe \nRespondent \npreferred \nan \napplication for refund for the excess duty paid in \nrelation to 285 Bills of Entry during the relevant \nperiod i.e., 18.06.2015 to 10.07.2015. \n(iv) \nThe ld. adjudicating authority vide the Order-in-\nOriginal No. 02-Cus/Refund/DC/Rxl/2018 dated \n23.01.2018 held that the refund amount of Rs. \n1,04,47,836/- is not payable in cash to the \nRespondent on the ground of unjust enrichment \nand thereby credited the said amount in the \n\nPage 3 of 8 \n \nAppeal No.: C/79541/2018-DB \n \n \nConsumer Welfare Fund in terms of Section 12C \nof the Central Excise Act, 1944. \n3. \nBeing aggrieved by the aforesaid Order-in-\nOriginal dated 23.01.2018, the Respondent preferred \nan appeal on two grounds: firstly, the imported \nproducts were sold based on MRP which underwent no \nchange during the relevant period and the period \nsubsequent thereto, and therefore the question of \npassing on burden of excess amount of duty to its \ncustomers does not arise; secondly, the Respondent \niterated that they had borne the burden of excess \namount of duty themselves which was also evident \nfrom the Annual Financial Statement of the relevant \nperiod where the excess amount had been shown \nunder the head 'advance'. \n4. On appeal, the Ld. Commissioner (Appeals) of \nCustoms, G.S.T. and Central Excise, Patna vide the \nimpugned order dated 03.10.2018 granted refund of \nthe excess CVD paid by the Respondent for the \nrelevant period by holding that the unjust enrichment \ncause is not applicable in the instant case as the two \nmajor conditions i.e. (i) amount being reflected in the \nBalance Sheet as receivable and (ii) submission of CA \nCertificate, stood fulfilled. In furtherance to the \nimpugned OIA, the refund of Rs. 1,04,47,836/- was \nsanctioned to the Respondent on 21.05.2019. Further, \ninterest on delayed sanction of refund was also \nallowed to the Respondent vide an Order-In-Original \nbearing \nno. \n05-Cus/Refund/Rxl/2020 \ndated \n17.12.2020. \n5. \nAggrieved from the said order, the Revenue has \nfiled this appeal. \n\nPage 4 of 8 \n \nAppeal No.: C/79541/2018-DB \n \n \n6. \nIn support of their contentions, the Ld. \nAuthorized Representative of the Revenue relies on \nthe decision in the case of Commissioner of C.Ex., \nMumbai-II v. M/s. Allied Photographics India Ltd. \n[2004 (166) E.L.T. 3 (S.C.)] to say that the \nRespondent has passed on the duty component to the \nbuyers since the goods were sold on M.R.P. basis. \n7. \nOn the other hand, the Ld. Counsel appearing \non behalf of the Respondent submits that the \nrespondent has not passed on the incidence of duty to \ntheir customers, but have borne the same by \nthemselves by showing the amount of refund as \n\"receivable\" in their Books of Accounts. It is submitted \nthat to that effect, a Chartered Accountant's \ncertificate has also been produced by the Respondent. \nMoreover, it is stated by the Respondent that the \ngoods domestically procured and the goods imported \nare sold at the same M.R.P. and the excess duty paid \nby them at the time of importation of the goods is \nshown as \"receivable\" in their Books of Accounts and \nnot recovered from their customers. In these \ncircumstances, the Ld. Counsel for the Respondent \ncontends that they have passed the bar of unjust \nenrichment. In support, he relies on the decision of \nthis Tribunal in the case of M/s. Birla Corporation Ltd. \nv. Commissioner of Central Excise, Lucknow [2017 \n(358) E.L.T. 443 (Tri. – All.)] and also the decision \nrendered in the case of M/s. Girish Foods & Beverages \n(P) Ltd. v. Commissioner of Central Excise, Pune \n[2007 (211) E.L.T. 388 (Tri. – Mum.)]. \n7.1. The Ld. Counsel for the Respondent also \nsubmitted that the Hon’ble Delhi High Court, in the \ncase of M/s. Hero Motorcorp Ltd. v. Commissioner of \nCustoms (Import & General) [2014 (302) E.L.T. 501 \n\nPage 5 of 8 \n \nAppeal No.: C/79541/2018-DB \n \n \n(Del.)], has distinguished the decision of the Hon'ble \nApex Court in the case of M/s. Allied Photographics \nIndia Ltd. (supra). \n8. \nHeard \nthe \nparties \nand \nconsidered \ntheir \nsubmissions. \n9. \nWe find that in this case, the short issue \ninvolved in the matter is as to whether the respondent \nhas passed the bar of unjust enrichment of excess \nduty paid by them which was sought to be refunded \nor not, when the goods were sold by the respondent \non M.R.P. basis, the amount of excess duty paid by \nthe respondent has been shown as “receivable” and \nalso when domestically procured goods have suffered \nless duty and imported goods have suffered more \nduty. \n9.1. The said issue as to whether on M.R.P. based \ngoods, the bar of unjust enrichment is applicable or \nnot has been dealt with by this Tribunal in the case of \nM/s. Birla Corporation Ltd. (supra) wherein the \nTribunal observed as under: - \n“8. Having considered the rival contentions and the \ncase laws referred to hereinabove, it is an admitted \nfact that the appellant have received the same \nprice/MRP for clearances of goods on 6 December, 7 \nDecember, 8 December, and so on. Accordingly I \nhold that there can be no presumption that the \nappellant have passed on the excess duty deposited \nerroneously on 7 December, to the buyer of the \ngoods. Accordingly, I hold that the doctrine of unjust \nenrichment has been satisfied by the appellant \nassessee and I hold them entitled to refund of the \namount in question.” \n \n \n\nPage 6 of 8 \n \nAppeal No.: C/79541/2018-DB \n \n \n9.2. Further, in the case of M/s. Girish Foods & \nBeverages (P) Ltd. (supra), again this Tribunal had an \noccasion to examine the said issue. The relevant \nobservations of the Tribunal are reproduced below: - \n“7. After going through the impugned order I find \nthat admittedly during the period February 2003 and \nMarch 2003, the appellant was not paying any duty \non their clearances on the ground that their factory \nbeing situated in the rural area was entitled to \nexemption in terms of Notification No. 8/03 dt. 1-3-\n2003. it is also on record that duty for the said period \ni.e. second fortnight of February 2003 and first \nfortnight of March 2003 was paid by them only on \n24-3-2003 by making one time entry in their Cenvat \ncredit account, against a remark “duty paid under \nprotest”. The said debit according to the appellant \nwas made in pursuance to the visit of the Dy. \nCommissioner in their factory and on his insistence. \nThe question which arises is that when the appellant \nhad paid the said amount of Rs. 8,132/- for the past \nclearance under protest, can it be said that the \nsubsequent clearances were cleared on payment of \nduty by the assessee without any reservations and \nthe same were voluntary payments. The entire \nprocess of payment of duty started with the \nappellants lodging a protest. This fact, in my views, \nis sufficient to hold that the subsequent clearances \nwere not voluntary but the protest initially lodged on \n24-3-2003 \ncontinued \nto \ncover \nsubsequent \nclearances and payment of duties, though, the \nappellant did not follow the elaborated procedure of \npayment of duty under protest. The entire idea of \npayment of duty under protest is to inform the \nRevenue that the assessee is not in agreement with \nthe Revenue’s view but to avoid any confrontation \nat that particular point of time, duty is being paid \nand the assessee reserves his right to settle the \nsame on the out come of the final verdict on the \ndisputed issue. As such it cannot be said that though \nthe initial payment on 24-3-03 was under protest, \nthe subsequent payments were voluntary and were \nhit by the bar of limitation. It has to be concluded \nthat the appellant paid the duty under protest and \non the final dispute about exemption being settled \nin their favour, was entitled to the refund of the \nsame. Gujarat High Court in the case of Shree Ram \nFood Industries, 2003 (152) E.L.T. 285 (Guj.) has \nobserved that payment having been made by the \npetitioner pursuant to demand and threat made by \nthe Deputy Commissioner & Superintendent, not a \nvoluntary payment but to be treated as payment \nunder protest and limitation will not apply. As I hold \nthat the appellant having lodged the protest at the \n\nPage 7 of 8 \n \nAppeal No.: C/79541/2018-DB \n \n \ntime of first payment of duty under the instruments \nof Dy. Commissioner, cannot be said to have paid \nthe subsequent duties voluntarily. In such a case, \nlimitation would be in applicable. \n8. As regards the Revenue’s appeal in respect of \nunjust enrichment, I find that the appellants were \nmanufacturing drinking water as a franchisees of \nM/s. Dhariwal Industries Ltd. The goods attracted to \nduty in terms of Section 4A of Central Excise duty \non the basis of MRP, which is being fixed by M/s. \nDhariwal Industries Ltd. and the appellants are not \nfree to challenge or alter the MRP so fixed. MRP of \nthe product during the period when normal rate of \nduty was paid and after 24-8-04 remained the same. \nIt has also been noticed by the appellate authority \nthat some of the other franchisee also availed \nexemption under Notification No. 9/02 dt. 1-3-2002 \nbut the MRP of all of them remained unchanged \nduring the entire period. This clearly indicate that \nduty burden has not been passed on to their \ncustomers. Commissioner (Appeals) has relied upon \nthe Trbunal’s decision in the case of Swarup Fibre v. \nCCE, \n2000 \n(120) \nE.L.T. \n510 \n(T) \nand \nITC \nBhadrachalam Paper v. CCE, 2002 (146) E.L.T. 582 \n(T). He also referred to a copy of the affidavit dated \n2nd September, 2005 duly notarized and solemnly \naffirming that they have not passed on the burden \nof duty involved to another person and have also \nsubmitted documentary evidence to show that MRP \nof goods remained constant before and after \npayment of excess duty. \n9. As against the above Revenue has relied upon \nCalcutta High Court decision in the case of Bata Shoe \n(P) Ltd., 2004 (169) E.L.T. 3 (Cal.) laying down that \nwhen there is no direct collection from customers, \nduty must have been reflected in ultimate cost of \nfinished goods. They have also referred to Hon’ble \nSupreme Court decision in the case of Solar \nPesticides Pvt. Ltd., 2000 (116) E.L.T. 401 (S.C.), \nlaying down that when duty paid on raw materials is \nadded in the price of the finished goods, incidence \nof duty is considered to have been passed on to the \nbuyer. Reliance has also been drawn to the Hon’ble \nSupreme Court’s decision in the case of M/s. Allied \nPhotographies India Ltd., 2004 (166) E.L.T. 3 (S.C.). \nHowever, I find that all the above decisions are \ndealing with the general principal that wherever duty \nis paid, the same gets reflected as a cost of the final \nproduct, as per the accounting system and is \npresumed to be a part of the final cost of the \nproduct. However, it is seen that in the instant case, \nduty is not attracted on the basis of value of the final \nproduct. Duty is based upon MRP of the final \nproduct, which remained constant irrespective of the \nfact of payment of higher duty. As such, when the \n\nPage 8 of 8 \n \nAppeal No.: C/79541/2018-DB \n \n \nproduct is leviable to duty in terms of MRP, it cannot \nbe concluded that the value of the final product \nfluctuated on account of payment of differential \nduty. Further the appellants contention that MRP in \nrespect of other franchise holders, who were availing \nexemption remained the same also supports their \nstand that duty burden was born by the appellant \nfrom their own pocket, and was not passed on to the \ncustomers. The Revenue has also not rebutted the \nassessees affidavit affirming that the duty has not \nbeen passed on to the buyer. In view of all these, it \nhas to be concluded as a matter of fact that the duty \nburden was not passed on to the buyers and the \nrefund is not hit by the bar of limitation.” \n \n10. \nWe have examined the decision in the case of \nM/s. Allied Photographics India Ltd. (supra) relied \nupon by the Revenue. We find that the facts of the \nsaid case are altogether different from that of the case \non hand inasmuch as in that case, the appellant \nhimself had admitted to have passed on the duty \ncomponent to his distributors. Therefore, the said \ndecision has no applicability to the facts of this case. \n11. \nIn these circumstances, we do not find any \nmerit in the appeal filed by the Revenue and \naccordingly, the same is dismissed. \n (Order pronounced in the open court on 12.02.2025) \n \n \n \n (ASHOK JINDAL) \n MEMBER (JUDICIAL) \n \n \n \n (K. ANPAZHAKAN) \n MEMBER (TECHNICAL) \nSdd \n \n Sd/- \n Sd/- \n"