COMMISSIONER OF CENTRAL EXCISE, MADRASversusM/S. ADDISON & CO. LTD.

                        (2016] 9 S.C.R. 591


      COMMISSIONER OF CENTRAL EXCISE, MADRAS                             A
                                  v.
                   M/S. ADDISON & CO. LTD.
                  (Civil Appeal No. 7906 of2002)
                         AUGUST 29, 2016                                 B
             [ANIL R. DAVE, AMITAVA ROY AND
                 L. NAGESWARA RAO, JJ.]
      Central Excise Act, 1944:
      s.11-B and its proviso - Refund - Unjust enrichment - Refund       c
claim in respect of turnover discount on the basis of credit notes -
Maintainability of - Held: Maintainable - Turnover discount shall
not be disallowed only because they are not payable at the time of
each invoice - ·However, assessee who did not bear the burden of
the duty, though entitled to claim deduction on the basis of credit
notes raised ·by him towards turnover disCXJunt is not entitled for      D
refund as he would be unjustly enriched.
      s.ll-B(2), proviso - Word 'buyer' - Connotation of- Held: A
plain reading of Clauses (d), (e) and (/) of the proviso to s.11-B (2)
shows that refund to be made to an applicant should be relatable
only to the duty of excise paid by the three categories of persons       E
menti01{e_d therein i.e. the manufacturer, the buyer and a .class of
applicants notified by the Central Government - Clause (e).to the
proviso refers to the buyer which is not restricted to the first buyer
from the manufacturer - The buyer ·mentioned therein can be a buyer
downstream as well - It might be difficult to identify who hadactually
                                                                         F
borne the burden but such verification would definitely assist the
Revenue in finding out whether the manufacturer or buyer who
makes an application for refund are being unjustly enriched.
       s.12-B - Statutory presumption under - Held: There is a
statutory presumption u/s.12-B that the duty has been passed on to
                                                                         G
the ultimate consumer.
      Disposing of the appeals, the Court
      HELD: 1. In the instant case, the Assessee has admitted
that the incidence of duty was originally passed on to the buyer•.
There is no material to show that the buyer to whom the incidence        H
                                591
592           ·SUPREME COURT REPORTS                        [2016] 9 S.C.R.



A     of duty was passed on by the Assessee did not pass it on to any
      other person. There is a statutory presumption under Section
      12-B of the Act that the duty has been passed on to the ultimate
      consumer. It is clear from the facts that the duty which was
      originally paid by the Assessee was passed on. The refund claimed
      by the Assessee is for an amount which is part of the excise duty
 B
      paid earlier and passed on. The Assessee who did not bear the
      burden of the duty, though entitled to claim deduction, is not
      entitled for a refund as he would be unjustly enriched. [Para 16)
      (604-G-H; 605-AJ
            2. The si11e qua 11011 for a claim for refund as contemplated
 c in Section 11-B of the Act is that the claimant has to establish
      that the amount of duty of excise in relation to which such refund
      is claimed was paid by him and that the incidence of such duty
       has not been passed on by him to any other perso11. Section 11-B
       (2) provides that, in case it is found that a part of duty of excise
 D     paid is refundable, the amount shall be credited to the Consumer
       Welfare Fund established under Section 12-C. There is a proviso
       to Section 11-B (2) which postulates that the amount of excise
       duty which is refundable may be paid to the applicant instead of
       being credited to the fund, if such amount is relatable to the duty
       of excise paid by the manufacturer and he had not passed on the
 E     incidence of such duty to any other person. Clause (e) to proviso
       of Section 11-B (2) also enables the buyer to receive the refund if
       he had borne the duty of excise, provided he did not pass on the
       incidence of such duty to any other perso11. The third category of
       a class of applicants who may be specified by the Central
 F      Government by a notification in the official gazette are also entitled
        for refund of the duty of excise. A plain reading of Clauses (d),
        (e) and (t) of the proviso to Section 11-B (2) shows that refund to
        be made to an applicant should be relatable only to the duty of
        excise paid by the three categories of persons mentioned therein
      ·i.e. the manufacturer, the buyer and a class of applicants notified
 G      by the Central Government. Clause (e) refers to the buyer which
        is not restricted to the first buyer from the manufacturer. The
        buyer mentioned in the above Clause can be a buyer downstream
        as well. The word 'buyer' in Clause (e) to proviso to Section
        11-B (2) of the Act cannot be restricted to the first buyer from
 H
   COMMISSIONER OF CENTRAL EXCISE, MADRAS v. M/S.                         593
                ADDISON & CO. LTD.

  the manufacturer. It might be difficult to identify who had actually     A
  borne the burden but such verification would definitely assist the
  Revenue in finding out whether the manufacturer or buyer who
  makes an application for refund are being unjustly enriched. If it
  is not possible to identify the person/persons who have borne
  the duty, the amount of excise duty collected in excess will remain
                                                                           B
  in the fund which will be utilized for the benefit of the consumers
  as provided in Section 12-D. [Paras 19, 21) [606-F-H; 607-A-B;
  609-G-H; 610-A-B]           .
        Mafatlal Industries Ltd. and Others v. Union of India
        And Ors. (1997) 5 SCC 536 : 1996 (10) Suppl. SCR
         585 - followed.                                                   c
         Union of India and Others v. Bombay Tyre International
         Pvt. Ltd. (1984) 1 sec 467 : 1984 (1) SCR 347; IFB
         Industries Ltd. v. State of Ke~ala (2012) 4 SCC 618 :
        2012 (4) SCR 802; Addison ~ Company Ltd., Madras
         v. Collector of Central Excise, Madras (1997) 5 SCC               D
         763 - referred to.
                           Case Law Reference
  1996 (10) Suppl. SCR 585                 followed       Para 10
  191M (1) SCR 347                         referred to    Para 11
  20~2. (4) SCR 802                        referred to    Para 11          E
  (1?97) 5 SCC 763                         referred to    Para 12
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7906
. of2002.
         From the Judgment and Order dated 23.11.2000 of the High Court
  of Judicature at Madras, in R. C. No. 1/1999                             F
                                WITH
         C. A. No. 8488 of2009
         C.A.No.14689of2015
         C. A. Nos. 8382, 8383, 8384, 8385, 8386, 8388, 8390, 8391 of
 2016.                                                                     G
       Atmaram N. S. Nadkarni, ASG, K. Radhakrishnan, Sr. Adv.,
 Ms. Nisha Bagchi, Ms. Binu Tamta, Ms. Meenakshi Grover, Ms. Puma
 Bhandari, Ms. Sujeea Shrivastava, Ms. Pooja Shanna, Jai Dehadari,
 Amogh Prabhu Desai, Salvador ·S. Rebello, B. Krishna Prasad,
 Mrs. Anil Katiyar, Advs. for the Appellant.                               H
594            SUPREME COURT REPORTS                          [2016] 9 S.C.R.



A           N. Venkatraman, Sr. Adv., S. Nandakumar, R. Satish Kumar,
      Prateek Gupta, P. Srinivasan, V. N. Raghupathy, M. P. Devanath, Anandh
      K., Hemant Bajaj, Abhishek Anand, Aditya Bhattarcharje,
      Ms. L. Chameye, Sridhar Potaraju,Arjun Singh, Gaichangpou Gangmei,
      Ms. Sindoora VNL, Dr. Manish Singhvi, Prasenjit Pritam,
      R. Gopalakrishnan, Sandeep Nµrain, Ashok Bannidinni (For M/s. S.
 B
      Narain & Co.), Advs. for the Respondents.
            The Judgment of the Court was delivered by
             L. NAGESWARA RAO, J. 1. The above Appeals have been
      listed before us because of an order dated 16.07.2008, by which there
 c    was a reference to a Larger Bench in view of the importance of the
      questions involved.
             2. Civil Appeal No. 7906 of2002 arises from the judgment dated
      23.11.2000 passed by the Madras High Court in R.C. No. 01of1999.
      Civil Appeal No. 14689 of2015 was filed by the Revenue against the
 D    judgment dated 26.11.2014 in Central Excise Appeal No. 21 of 2009.
      Special Leave Petition (C) Nos. 18426 of2015, 18423 of2015, 18425 of
      2015,23722of2015, 12282of2016, 16142of2016and 16141 of2016
      are filed against the judgment of the Andhra Pradesh High Court in
      Central Excise Appeal Nos. 21 of2005, 9 of2005, 51 of2004, 10 of
      2005, 44 of2004, 38 of2004 and 18 of2005 respectively.
 E
             3. Civil Appeal No. 8488 of 2009 is filed against the judgment
      dated 20.08.2008 passed by the Bombay High Court in Central Excise
      Appeal No. 100 of2008 and Special Leave Petition (C) No. 25055 of
      2009 is filed by the Union oflndia against the judgment dated 26.11.2008
      of the High Court ofRajasthan at Jodhpur in D.B. Central Excise Appeal
 F    No. 34 of2007.
             4. Civil Appeal No. 7906 of2002 will be taken as the lead matter
      as SLP (C) Nos. 18426, 23 722, 18425, 18423 of2015 and 12282, 16 I 41
      and 16142 of2016 and Civil Appeal No. 14689 of2015 were disposed of
      by the Andina Pradesh High Court by following the Madras High Court's
 G    impugned judgment in Civil Appeal No. 7906 of2002. Civil Appeal No.
      8488 of2009 and SLP No. 25055 of2009 will be dealt with separately
      as the facts and the point involved are slightly different.
            Civil Appeal No. 7906 of 2002
              5. The respondent in the above appeal is a manufacturer of cutting
 H    tools. The respondent-Assessee filed a refund claim for Rs. 40,22, 133/- on
    COMMISSIONER OF CENTRAL EXCISE, MADRAS v. M/S.                             595
       ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

 19.07.1988 and a supplementary refund claim for Rs. 5,44,688/- on              A
 15 .06.1989 towards excise duty paid on various taxes and discounts
 such as turnover tax, surcharge, additional sales discounts, transitory
 insurance, excise discounts, additional discounts and turnover discounts.
 The said claim was later on revised to Rs. 40,37,938/-on 17.08.1988.
 The claim of the Assessee was that the said amount was deductable
                                                                                B
 from the excise duty. The Department was of the opinion that the refund
 towards turnover discount and additional discount was to be rejected as
 the Assessee was not eligible for deduction from the wholesale price for
 determination of value under Section 4 of the Central Excises & Salt
 Act, 1944. On 23.08.1989 a notice was issued to the respondent to
 show cause as to why the refund claim involving turnover discount and          c
 additional discount should not be rejected. After hearing the Assessee,
 the Assistant Collector by an order dated 06.12.1989 rejected the refund
 claim amounting to Rs.26,3 7,462/- and Rs. I 7, I 7,808/- in respect of
 turnover discount and additional discount respectively on the ground that
 the quantum of discount become known only at the year end. The Collector
                                                                                D
 of Central Excise Appeals set aside the said order dated 06.12.1989 of
 the Assistant Collector by his order in appeal dated 21.02.1990 and held
 that the Assessee was entitled to refund.
       6. As per the amendment made to Section 11-B of the Central
 Excise Act, 1944, (hereinafter referred to as "the Act") an application
 filed for refund prior to the Central Excises & Customs Laws                   E
 (Amendment) Act 1991 shall be deemed to have been made under the
 Amendment Act and considered accordingly. The Assistant Collector
 of Excise issued a show cause notice dated 13.02.1992, directing the
 Assessee to produce evidence in support of the refund claim. It was
 mentioned in the said notice that the burden of proof to show thatthe full
                                                                                 F
 incidence of duty has not passed on to the buyers is on the Assessee as
 per Section 12-B of the Act.
          7. The Assistant Collector passed an Order-in-Original dated
  27. I 0.1992 holding that the Assessee is entitled for the refund claimed
· by him. The Collector of Central Excise by Order-in-Appeal dated
                                                                                G
  20.10.1993 rejected the appeal filed by the Revenue and upheld the
  order dated 27.10.1992 of the Assistant Collector of Central Excise,
  Madras V•h Division. The Customs, Excise and Gold (Control) Appellate
  Triounal (CEGAT), South Zone Bench of Madras allowed the appeal
  filed by the Revenue against the order dated 20. I 0.1993 of the Collector
  of Central Excise. The Tribunal held that the Assessee would be entitled       H
596             SUPREME COURT REPORTS                          [2016] 9 S.C.R.



A     to grant of refund only if he had not passed on the duty burden to his
      buyers. It was also held that the buyer in turn, would be entitled to claim
      refund only if he has not passed on the incidence of duty to any other
      person. It was further held by the Tribunal that the event which gives
      rise to cause of action for refund is payment of duty made in respect of
      goods cleared from the factory and once the duty burden has been passed
B
      on to the buyer at the time ofclearance, issuance of credit note at a later.
      point of time would not entitle the Assessee to claim any refund. The
      Tribunal also held that burden of duty is normally passed by the
      manufacturer and the dealer to the ultimate consumer.
             8. The Assessee filed an application for reference of questions
c     arising out of the final order dated 07.12.1996. The Tribunal referred the
      following questions for consideration of the High Court by its order dated
      28.08.1998, taking note of the fact of the existence of divergent views
      on the point.
            "1. Whether by passing on the duty element on the
D           discount to its dealers the applicant had satisfied the
            requirements of proviso 'd' to sub Section 11-B (2) of
            the Central Excise Act, 1944 and was therefore, entitled
            to be paid the amount claimed as refund?
             2. Whether the Tribunal after finding that the burden of
 E           duty was passed on by the applicant to its various
             dealers by issue of credit notes was right in concluding
             that the ingredients of Section 11-B were not satisfied. "
          9. The High Court of Madras answered the reference in favour
   of the Assessee by its judgment dated 23.11.2000. The High Court held
 F that the refund towards deduction of turnover discount cannot be denied
   on the ground that there was no evidence to show who is the ultimate
   consumer of the product and as to whether the ultimate consumer had
   borne the burden of the duty. According to the High Court, Section 11-
   B of the Act cannot be construed as having reference to the ultimate
 G Consumer    and it would be sufficient for the claimant to show that he did
   not pass on the burden of duty to any other person. It was further held
   by the High Court that the claim for refund made by the manufacturer is
   not dependent on the identification of the ultimate consumer. The word
    'buyer' used in Section 12-B of the Act does not refer to ultimate
   consumer and has reference only to the person who buys the goods
 H from the person who has paid duty i.e. the manufacturer. The High
  COMMISSIONER OF CENTRAL EXCISE, MADRAS v. MIS.                              597
     ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

Court concluded that the Tribunal committed an error in holding that the       A
Assessee was not entitled for refund despite the Assessee proving that
the duty was not passed on to its buyers. Challenging the legality and
validity of the said judgment of the High Court, the Commissioner of
Central Excise, Madras has filed Civil Appeal No. 7906 of2002.
       10. We have heard Mr. Atmaram N. S. Nadkarni, Additional                B
Solicitor General and Mr. K. Radhakrishnan, Senior Advocate for the
appellant and Mr. N. Venkatraman, Senior Advocate for the respondent.
The learned Additional Solicitor General submitted that a claim for refund
can be entertained only when the claimant has not passed on the duty to
any other person. By referring to the statement of objects and reasons
for the amendment made to the Central Excises & Customs Laws                   c
(Amendment) Act 199 l, the learned Additional Solicitor General submitted
that the Act had given effect to the recommendations of the Public
Accounts Committee whereby the refund of any duty was proposed to
be made only to the person who ultimately bears the incidence of such
duty. He submitted that it would be necessary for a verification to be         D
done to find out as to who actually bore the burden of duty. According
to him such verification would not stop with the manufacturer and his
buyer but would extend to the ultimate buyer i.e. the consumer. He
submitted that there can be no claim for refund cm the basis of post
clearance transact ions. He further submitted that there is a presumption,
though rebuttable, that the full incidence of the duty has passed on to the    E
buyerofthe goods. !he learned Additional Solicitor General has strongly
relied upon Mafatlal /11d11stries Ltd. am/ Others Vs. U11io11 offll{/i{I
Anti Ors.. reported in (1997) 5 SCC 536 to suppott his contentions on
unjust enrichment.
       11. Mr. N. Venkatraman, Senior Advocate appearing for the                F
Assessee contended that turnover discount is an admissible deduction,
the scheme of turnover discount was known to the buyer even at the
time of sale, discount was given on the basis of the turnover of sales
made bythe buyer and that the credit notes issued to the buyer contains
the discounts and the duty element. Though there is a confusion from
the pleadings and the order passed by the High Court regarding the
                                                                               G
passing of the incidence of duty, Mr. N. Venkatraman had fairly submitted
that the incidence of duty was originally passed on to the buyer. He
submitted that the turnover discount should be allowed to be deducted
from the sale price as held in Union oflndia and Others Vs. Bombay
Tyre International Pvt. Ltd. reported in (1984) 1 SCC 467 and                  H
598             SUPREME COURT REPORTS                          [2016] 9 S.C.R.



A     (2005) 3 SCC 787. He contends that in the said judgments it was held
      that trade discounts should not be disallowed only because they are not
      payable at the time of each invoice or deducted from the invoice price.
      He also placed reliance on IFB Industries Ltd. Vs. State of Kerala
      reported in (2012) 4 sec 618 to support his submission that to qualify
      for exemption, discounts need not be shown in the invoice itself.
B
             12. Mr.Venkatraman further submitted that the eligibility of the
      Assessee for refund of amounts towards turnover discounts is no longer
      in doubt as this Court by its judgment dated 11.03.1997 in Addison &
      Company Ltd., Madras Vs. Collector of Central Excise, Madras
      reported in (1997) 5 sec 763 had held that turnover discount is an
c     admissible deduction. He stated that Section 4 read with Section 11-B
      of the Act permits the respondent to claim for refund of turnover discount
      given after the sale, provided the scheme of discount has been agreed
      upon prior to the removal of the goods. The Assessee while issuing a
      credit note for the turnover discount has returned the duty component
D     forming part of the said discount. As the Assessee has not retained the.
      duty component of the turnover discount, he does not stand to benefit
      from both ends and hence he is entitled for claiming a refund of the
      excess duty paid. The refund to which the Assessee is entitled to would
      not result in any unjust enrichment. While referring to the relevant
      provisions of Section 11-B, 12-Aand 12-B oftheAct, Mr. Venkatraman
 E    submitted that the buyer mentioned in the said provisions would be the
      buyer of the goods from the manufacturer Assessee. He stressed upon
      Clauses 'a' to 'f' of the Proviso to Section 11-B (2) in support of his
      submission that the only persons eligible to make a claim for refund
      would be the manufacturer, his buyer and a class of persons as notified
 F    by the Central Government. On the basis of the above submission, he
      states that there is absolutely no necessity for any verification to be
      made as to who is the ultimate consumer and as to whether he had
      borne the burden of the duty. According to him, ifthe manufacturer is
      entitled for a refund towards an admissible deduction, such refund has
      to be given to him if he did not retain the benefit. He also stated that the   •
 G    judgment of this Court in Mafatlal Industries Ltd. & Ors. Vs. Union
      oflndia (supra) which was relied upon by the learned Additional Solicitor
      General would, in fact, support his case. He further submitted that the
      identity of the Excise duty is lost at the sales conducted downstream as
      the duty becomes part of the price.
 H           13. Jn reply to the submissions of Mr. Venkatraman, Sr. Advocate,
  COMMISSIONER OF CENTRAL EXCISE, MADRAS v. M/S.                                599
     ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

the Ld. Additional Solicitor General stated that the verification to be          A
done by the Department to enquire about the ultimate buyer who has
actually paid the duty is not a futile exercise. He stated that the refund
can be granted only to the person who has paid the duty and not to
anyone else. If the ultimate consumer cannot be identified, the amount
would be retained in the Fund and utilized for the benefit of Consumers.
                                                                                 B
       14. We have considered the submissions made by the Counsel
carefully and examined the material on record. The questions that arise
for consideration in this case are whether the Assessee is entitled for a
refund and whether there would be unjust enrichment ifthe said refund
is allowed. It was held by the Special Bench ofCEGAT, New Delhi by
its judgment dated 17.03.1.994 in Collector of Central Excise, Madras            c
Vs. Addison & Co. Ltd. that the turnover discount is not an admissible
abatement on the ground that the quantum of discount was not known
prior to the removable of the goods. In an appeal filed by the respondent-
Assessee, this Court by its judgment dated 11.03.1997 in Addison &
Co. Ltd. Vs. Collector of Central Excise, Madras (supra) held                    D
thatthe turnover discount is an admissible deduction. This Court approved
the normal practice under which discounts are given and held that the
discount is known to the dealer at the time of purchase. The Additional
Solicitor General submitted that any credit note that was raised post
clearance wi II not be taken into account for the purpose of a refund by
the Department. We do not agree with the said submission as it was               E
held by this Court in Union of India Vs Bombay Tyre International
(supra) that trade discounts shall not be disallowed only because they
are not payable at the time of each invoice or deducted from the invoice
price. It is the submission of the Assessee that the turnover discount is
known to the dealer even at the time of clearance which has also been             F
upheld by this Court. It is clear from the above that the Assessee is
entitled for filing a claim for refund on the basis of credit notes raised by
him towards turnover discount.
      l5. The following provisions of Central Excise Act, 1944 are
relevant for appreciating the point of unjust enrichment:-                       G
       SECT/ON llB. C/llim for refund of duty. -
       "(l) Any person claiming refund of any duty of excise
       may make an application for refund of such duty to the
       [Assistant Commissioner of Central Excise or Deputy
       Commissioner of Central Excise] before the expiry of
                                                                                 H
600      SUPREME COURT REPORTS                       [2016] 9 S.C.R.



A     [one year] [from the relevant date] [[in such form and
      manner] as may be prescribed and the application shall
      be accompanied by such documentary or other
      evidence (including the documents referred to in section
      12A) as the applicant may furnish to establish that the
      amount of duty of excise in relation to which such rejimd
B
      is claimed was collected ji·om, or paid by, him and the
      incidence of such duty had not been passed on by him
      to any other person :
            Provided that where an application for refund has
      been made before the commencement of the Central
c     Excises and Cusioms Lmvs (Amendment) Act, 1991, (40
      of 1991), such application shall be deemed to have been
      made under this sub-section as amended by the said
      Act and the same shall be dealt with in accordance with
      the provisions of sub-section (2) as substituted by that
 D    Act:]
            [Providedjiirther that] the limitation of [one year]
      shall not apply where any duty has been paid under
      protest.
           ****
             (2) If, on receipt of any such application, the
 E
       [Assistant Commissioner of Central Excise or Deputy
       Commissioner of Central Excise] is satisfied that the
       whole or any part of the duty of excise paid by the
       applicant is refundable, he may 111ake an order
       accordingly and the a111ount ·so determined shall be
 F     credited to the Fund :
             Provided that the amount of duty of excise as
       determined by the [Assistant Commissioner of Central
       Excise or Deputy Commissioner of Central Excise]
       under the foregoing provisions of this sub-section shall,
 G     instead of being credited to the Fund, be paid to the
      ·applicant, if such amount is relatable to-
       (a) rebate of duty of excise on excisable goods exported
           out of India or on excisable materials used in the
           manufacture of goods which are exported out of
           India;
 H
COMMISSIONER OF CENTRAL EXCISE, MADRAS v. MIS.                 601
   ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

  (b) unspent advance deposits lying in balance in the          A
      applicants account current 111aintained with the
      [Com111issioner of Central Excise};
  (c) refund of credit of duty paid on excisable goods
      used as inputs in accordance with the rules made,
      or any notification issued, under this Act;               B
  (d) the duty of excise paid by the 111anufacturer, if he
      had not passed on the incidence of such duty to any
      other person;
  (e) the duty of excise borne by the buyer, if he had not
      passed on the incidence of such duty to any other         c
      person;
  (/) the duty of excise borne by any other such class of
      applicants as the Central Government may, by
      notification in the Official Gazette, specify :
       Provided further that no notification under clause
                                                                D
  (f) of the first proviso shall be issued unless in the
  opinion of the Central Government, the incidence of
  duty has not been passed on by the persons concerned
  to any other person.
  (3) Notwithstanding anything to the contrary contained
  in any judgment, decree, order or direction of the             E
  Appellate Tribunal of any Court in any other provision
  of this Act or the rules made thereunder or any other
  law for the time being in force, no refund shall be made
  except as provided in sub-section (2).
  (4) Every notification under proviso to sub-section (2)        F
  shall be laid before each House of Parliament, if it is
  sitting, as soon as may be after the issue of the
  notification, and, if it is not sitting, within seven days
  of its re-assembly, and the Central Government shall
  seek the approval of Parlia111ent to the notification by a
  resolution moved within a period of fifteen days              G
   beginning with the day on which the notification is so
  laid before the House of the People and if Parlia111ent
  makes any modification in the notification or directs
  that the notification should cease to have effect, the
  notification shall thereafter have effect only in such        H
602.      SUPREME COURT REPORTS                        [2016] 9 S.C.R.


A      modified form or be of no e.ffect, as the case may be,
       but without prejudice to the validity of anything
       previously done thereunder.
       (5) For the removal of doubts, it is hereby declared that
       any not(fication issued under clause f of the first proviso
B      to sub-section (2), including any such notification
       approved or modified under sub-section (4), may be
       rescinded by the Central Government at any time by
       notification in the Official Gazette.}
            [Explanation. - For the purposes of this section, -
C      (A) .. refund" includes rebate of duty of excise on
       excisable goods exported out of India or on excisable
       materials used in the manufacture of goods which are
       exported out of India;
       (B) "relevant date" means, -
D
            (a) in the case ofgoods exported out of India where
       a refund of excise duty paid is available in re!>pect of
       the goods themselves or, as the case may be, the
       excisable materials used in the manufacture of such
       goods, -
 E        (i) if the goods are exported by sea or air, the date
               on which the ship or the aircraft in which such
               goods are loaded, leaves India,
               or
          (ii) if the goods are exported by land, the date on
 F             which such goods pass the frontier,
               Or
          (iii)if the goods are exported by post, the date of
              dispatch of goods by the Post Office concerned
              to a place outside India;
G
       (b) in the case of goods returned for being remade,
       refined, reconditioned, or subjected to any other similar
       process, in any factory, the date of entry into the factory
       for the purposes aforesaid;
       (c) in the case of goods to which bandero/s are required
H
COMMISSIONER OF CENTRAL EXCISE, MADRAS v. M/S.                   603
   ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

  to be affixed if removed for home consumption but not           A
  so required when exported outside India, if returned to
  a factory after having been removed from such factory
  for export out of India, the date of entry into the factory;
  (d) in a case where a manufacturer is required to pay a
  sum, for a certain period, on the basis of the rate fixed       B
  by the Central Government by notification in the Official
  Gazette in full discharge of his liability for the duty
  leviable 011 his production of certain goods, if after the
  manufacturer has made the payment on the basis of such
  rate for any period but before the expiry of that period
  such rate is reduced, the date of such reduction;               c
  [(e) in the case of a person, other than the 111anufacture1;
  the date of purchase of the goods by such person;]
  (ea) in the case ofgoods which are exempt from payment
  of duty by a special order issued under sub-section (2)         D
  of section SA, the date of issue of such order;]
  (eb) in case where duty of excise is paid provisionally
  under this Act or the rules made thereunder, the date of
  adjustment of duty after the final assessment thereof;]
  (jj in any other case, the date of payment of duty.]            E

  SECTION 12A. Price of goods to itulicltte tile t111w1111t
  of duty paid tllereon. -
  Notwithstanding anything contained in this Act or any -
  other law for the time being in force, every person who         F
  is liable to pay duty of excise on any goods shall, at the
  time of clearance of the goods, prominently indicate in
  all the documents relating to assessment, sales invoice,
  and other like documents, the amount of such duty which
  will form part of the price at which such goods are to
  be sold.                        ·                               G
  SECTION l 2B. Presumption t/lltt. tile inci<lence of tluty
  llas been passed 011 to tile buyer. -'-.
  Every person who has paid the duty of excise on any
  goods under this Act shall. unless the contrm:v is proved
                                                                  H
604             SUPREME COURT REPORTS                           [2016] 9 S.C.R.


A           by him, be deemed to have passed on the full incidence
            of such duty to the buyer of such goodY.
            SECTION 12C. Consumer Welfare Fund. -
             (1) There shall be established by the Central
            Government a fund, to be called the Consumer Welfare
 B          Fund.
            (2) There shall be credited to the Fund, in such manner
            as_ may be prescribed, -
            (a) the amount of duty of excise referred to in sub-
c           section (2) of section 11 B or sub-section (2) of section
            11 C or sub-section (2) of section 11 D;
            (b) the amount of duty of customs referred to in sub-
            section (2) of section 2 7 or sub-section (2) of section
            28A, or sub-section (2) of section 28B of the Customs
 D          Act, 1?62 (52 of 1962);
            (c) any income from investment of the amount credited
            to the Fund and any other monies received by the
            Central Government for the purposes of this Fund.
            SECTION 12D. Utilisation of tile Fund. -
 E           (1) Any money credited to the Fzmd shall be utilised by
            the Central Government for the welfare of the consumers
            in accordance with such rules as that Government may
            make in this behalf
            (2) The Central Government shall maintain or, if it thinks
 F          fit, specify the authority which shall maintain, proper
            and separate account and other relevant records in
            relation to the Fund in such form as may be prescribed
            in consultation with the Comptroller and Auditor-
            General of India".
 G            16. In the instant case, the Assessee has admitted that the incidence
      of duty was originally passed on to the buyer. There is no material brought
      on record to show that the buyer to whom the incidence of duty was
      passed on by the Assessee did not pass it on to any other person. There
      is a statutory presumption under Section 12-B of the Act that the duty
H     has been passed on to the ultimate consumer. It is clear from the facts
  COMMISSIONER OF CENTRAL EXCISE, MADRAS v. MIS.                              605
     ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

of the instant case that the duty which was originally paid by theAssessee     A
was passed on. The refund claimed by the Assessee is for an amount
which is part of the excise duty paid earlie.r and passed on. TheAssessee
who did not bearthe burden of the duty, though entitled to claim deduction,
is not entitled for a refund as he would be unjustly enriched.
     It will be useful to refer to the relevant para of Mafatlal               B
Industries Vs. Union of India (supra) in this connection.
       '"108. (iii) A claim for refund, whether made under the
      provisions of the Act as contemplated in Proposition (i)
      above or in a suit or writ petition in the situations
      contemplated by Proposition (ii) above, can succeed                      c
      only if the petitioner/plaintiff alleges and establishes
      that he has not passed on the burden of duty to another
      person/other persons. His refund claim shall be allowed/
      decreed only when he establishes that he has not passed
      on the burden of the duty or to the extent he has not so
      passed 011, as the case may be. Whether the claim for                    D
      restitution is treated as a constitutional imperative or
      as a statutory requirement, it is neither an absolute right
      nor an unconditional obligation but is subject to the
      above requirement, as explained in the body of the
      iudgment. Where the burden of the duty has been passed                   E
      on, the claimant cannot say that he has suffered any
      real loss or prejudice. The real loss or prejudice is
      suffered in such a case by the person who has ultimately
      borne the burden and it is only that person who can
      legitimately claim its refund. But where such person does
      not come forward or where it is not possible to refund                   F
      the amount to him for one or the other reason, it is just
      and appropriate that that amount is retained by the State,
      i.e., by the people. There is no immorality or impropriety
      involved in such a proposition.
       The doctrine of unjust enrichment is a just and salutary                G
       doctrine. No person can seek to collect the duty from
       both ends. In other words, he cannot collect the duty
       from his purchaser at one end and also collect the same
       duty from the State on the ground that it has been
       collected from him contrary to law. The poirer of the
                                                                               H
606             SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A           Court is not meant to be exercised.for unjustly enriching
            a person. The doctrine of unjust enrichment is, however,
            inapplicable to the State. State represents the people of
            the country. No one can speak of the people being
            unjustly enriched''.
8            17. Section 11-8 (2) of the Act contemplates that the amount of
      refund determined by the Authorities shall be credited to the fund. The
      Proviso to Section 11-8 (2) permits the refund to be paid to the applicant
      instead of being credited to the fund if such amount is relatable to the
      manufacturer, the buyer or any other such class of applicants as notified
      by the Central Government.
c
             18. Mr. Venkatraman interpreted the said provision to mean that
      the only persons who were entitled for claim of refund are the
      manufacturer, his buyer and any other class of persons as notified by the
      Central Government. There is no dispute about the fact that no
      notification has been issued by the Central Government as contemplated
D     in Clause (t) to proviso to Section 11-8 (2) of the Act. He contested
      that the claim for refund can be made only by the manufacturer or his'
      buyer and any enquiry pertaining to unjust enrichment should be restricted
      only to the manufacturer and his buyer. The ultimate buyer/ consumer
      will not figure in the scheme of Sections 11-8, 12-A, 12-8 and .12-C of
 E    the Act. This submission was accepted by the High Court in the impugned
      judgment. We do not approve the findings of the High Court in this
      regard.
             19. The sine qua non for a claim for refund as contemplated in
      Section 11-8 of the Act is that the claimant has to establish that the
 F    amount of duty of excise in relation to which such refund is claimed was
      paid by him and that the incidence of such duty has not been passed on
      by him to any other person. Section 11-8 (2) provides that, in case it is
      found that a part of duty of excise paid is refundable, the amount shall be
      credited to the fund. Section 2 (ee) defines Fund to mean the Consumer
      Welfare Fund established under Section 12-C. There is a proviso to
G     Section 11-8 (2) which postulates that the amount of excise duty which
      is refundable may be paid to the applicant instead of being credited to
      the fund, if such amount is relatable to the duty of excise paid by the
      manufacturer and he had not passed on the incidence of such duty to
      any other person. Clause ( e) to proviso of Section 11-8 (2) also enables
H     the buyer to receive the refund if he had borne the duty of excise, provided
  COMMISSIONER OF CENTRAL EXCISE, MADRAS v. MIS.                            607
     ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

he did not pass on the incidence of such duty to any other person.           A
There is a third category of a class of applicants who may be specified
by the Central Government by a notification in the official gazette who
are also entitled for refund of the duty of excise. A plain reading of
Clauses (d), (e) and (f) of the proviso to Section ll-lli{2) shows that
refund to be made to an applicant should be relatable only to the duty of
                                                                             B
excise paid by the three categories of persons mentioned therein i.e. the
manufacturer, the buyer and a class of applicants notified by the Central
Government. Clause (e) refers to the buyer which is not restricted to
the first buyer from the manufacturer. The buyer mentioned in the above
Clause can be a buyer downstream as well. While dealing with the
absence of a provision for refund to the consumer in the rules this Court    c
in Mafatlal Industries Vs. Union oflndia (supra) held as follows:-
      "98. A major attack is mounted by the learned counsel
      for petitioners-appellants on Section 11-B and its allied
      provisions on the ground that real purpose behind them
      was not to benefit the consumers by refusing refund to                 D
      manufacturers (on the ground of passing on the burden)
      but only to enable the Government to retain the illegally
      collected taxes. It is suggested that the creation of the
      Consumer Welfare Fund is a mere pretence and not an
      honest exercise. By reading the Rules framed under
      Section I 2-D, it is pointed out, even a consumer, who                 E
      has really borne the burden of tax and is in a position
      to establish that fact, is yet not entitled to apply for
      refand of the duty since the Rules do not provide for
      such a situation. The Rules contemplate only grants
      bein;; made to Consumer Welfare Societies. Even in the                 F
      matter of making grants, it is submitted, the Rules are
      so framed as to make it highly difficult for any consumer
      organisation to get the grant. There is no provision in
      the Act, Shri Nariman submitted, to locate the person
      really entitled to refund and to make over the money to
      him. "We expect a sensitive Government not to bluff but                G
      to hand back the amounts to those entitled thereto",
      intoned Shri Nariman. It is a colourable device -
      declaimed Shri Sorabjee - "a dirty trick" and a
      shabby thing". The reply of Shri Parasaran to this
      criticism runs ·thus: It ill-becomes the manufacturers/                H
608            SUPREME COURT REPORTS                         [2016] 9 S.C.R.



A           Assessees to espouse the cause of consu111ers, when all
            the while they had been making a killing at their expense.
            No conswners' organisation had come forward to voice
            any grievance against the said provisions. Clause (e)
            of the proviso to sub-section (2) of Section 11-B does
            provide for the buyer of the goods, to whom the burden
B
            of duty has been passed on, to apply for refund of duty
            to him, provided that he has not in his turn passed on
            the duty to others. It is, therefore, not correct to suggest
            that the Act does not provide for refund of duty to the
            person who has actually borne the. burden. There is no
 c          vice in the relevant provisions of the Act. Rules cannot
            be relied up01i to i111pug11 the validity of an enactment,
            which must stand or faff 011 its own strength. The defect
            in the Rules, assu111ing that there is any, can always be
            corrected if the experience warrants it. The Court too
            111ay indicate the 111odifications needed in the Rules. The
 D
            Government is always prepared to make the appropriate
            changes in the Rules since it views the process as a
             "trial and error" method - says Shri Parasaran ".
             20. There was a further submission which was considered in the
      said judgment about the convenience/difficulty for the ultimate consumer
 E    to make applications for refund. In that co~mection it was held as
      follows:-
            "99. We agree with Shri Parasaran that so far as the
            provisions of the Act go, they are unexceptionable.
            Section 12-C which creates the Consumer Welfare Fund
 F          and Section 12-D which provides for 111aking the Rules
            specifying the manner in which the money credited to
            the Fund shall be utilised cannot be faulted on any
            ground. Now, coming to the Rules, it is true that these
            Rules by. themselves do not contemplate refund of any
            amount credited to the Fund to the consumers who may
 G
            have borne the burden; the Rules only provide for
             "grants" being 1nade in favour of consumer
            organisations for being spent on welfare of consumers.
            But,· this is perhaps for the reason that clause (e) of the
            proviso to sub-section (2) of Section ll-B does provide
 H          for the purchaser of goods applying for and obtaining
  COMMISSIONER OF CENTRAL EXCISE, M(\.DRAS v. MIS.                          609
     ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

      the refund where he can satisfy that the burden of the                 A
      duty has been borne by him alone. Such a person can
      apply within six months of his purchase as provided in
      clause (e) of Explanation B appended to Section 11-B.
      It is. therefore, not correct to contend that the impugned
      provisions do not provide for refimding the tax collected
                                                                             B
      contrary to law to the person really entitled thereto .. A
      practical difficulty is pointed out in this behalf by the
      learned counsel for appellants-petitioners: It is pointed
      out that the manufacturer would have paid the duty at
      the place of "removal" or "clearance" of the said goods
      but the sale may have taken place elsewhere; if the                    c
      purchaser wants to apply for refund - it is submitted
      - he has to go to the place where the duty has been
      paid by the manufacturer and apply there. It is also
      pointed out that purchasers may be spread all over India
      and it is not convenient or practicable for all of them to ·
                                                                             D
      go to the place of "removal" of goods and apply for
      refund. True it is that there is this practical
      inconvenience but it must also be remembered that such
      claims will be filed only by purchasers of high-priced
      goods where the duty component is large and not by all
      and · sundry/small purchasers. This practical                          E
      inconvenience or hardship, as it is called, cannot be a
      ground for holding that the provisions introduced by
      the 1991 (Amendment) Act are a "device" or a "ruse"
      to retain the taxes collected illegally and to invalidate
      thnn on that ground - assuming that such an argument
                                                                             F
      is permissible in the case of a taxing enactment made
      by Parliament. (See R.K. Garg [(1981) 4 SCC 675 :
      1982 SCC (Tax) 30: AIR 1981 SC 2138) and other
      decisions cited in paras 87 and 88.)"
      21. That a consumer can make an application for refund is clear
from paras 98 and 99 of the judgment of this Court in Mafatlal Industries    G
(supra). We are bound by the said findings of a Larger Bench of this
Court. The w~d 'buyer' in Clause (e) to proviso to Section 11-B (2) of
the Act can90t be restricted to the first buyer from the manufacturer.
Another submission which remains to be considered is the requirement
ofverifiGation to be done for the purpose of finding out who ultimately      H
610            SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A     bore the burden of excise duty. It might be difficult to identify who had
      actually borne the burden but such verification would definitely assist
      the Revenue in finding out whether the manufacturer or buyer who makes
      an application for refund are being unjustly enriched. Ifit is not possible
      to identify the person/persons who have borne the duty, the amount of
      excise duty collected in excess will remain in the fund which will be
B
      utilized forthe benefit of the consumers as provided in Section 12-D.
             22. The High Court proceeded on an erroneous assumption of
      fact as well. It was held by the High Court that there is no unjust
      enrichment as the burden has not been passed on. The High Court's
      interpretation of Section I l-8 is also not correct.
 c
             23. In view of the above find in gs, the judgment of the High Court
      is liable to be set aside. The Assessee is not entitled to refund as it
      would result in unjust enrichment. The Appeal is allowed and the
      judgment of the High Court is set aside.
 D    Special Leave Petition (C) Nos. 18426, 23722, 18423, 18425 of
      2015 and 12282, 16141 and 16142 of 2016.
             Leave granted.
              24. Civil Appeals arising out of Special Leave Petition (C) Nos.
      18426, 23 722, 18423 and 18425 of 2015 are filed by Commissioner of
 E    Central Excise, Vishakapatnam, challenging the legality ofjudgment dated
      19.02.2014 of a Division Bench of the High Court of Andhra Pradesh in
      Central Excise Appeal Nos. 51 of2004 and I 0, 9 and 21 of2005. Civil
      Appeals arising out ofSLP (C) Nos. 12282, 16141and16142 of2016
      are filed by the Commissioner of Central Excise, Vishakapatnam against
      the judgment dated 01.07.2015 ofa Division Bench of the High Court of
 F
      Andhra Pradesh in Central Excise Appeal Nos. 44 and 38 of2004 and
      18 of2005. These three appeals were disposed of by the High Court in
      terms of its earlier judgment dated 19.02.2014.
             25. The Assessee i.e. Andhra Pradesh Paper Mills Ltd.
 G    manufactures Paper and Paper boards. There is no dispute that excise
      duty is paid by the Assessee and the same is passed on to its buyers.
      Applications were filed by the Assessee for refund of amounts towards
      trade discounts that were given to its buyers. The refund claim is on the
      basis of credit notes raised by the Assessee subsequent to the sale/
      removal of goods. The credit notes that were raised by the Assessee
 H    were towards trade discounts which included the component of excise
  COMMISSIONER OF CENTRAL EXCISE, MADRAS v. MIS.                            611
     ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

duty. The refund claims of the Assessees were rejected by the Assistant      A
Commissioner of Central Excise, Rajahmundry Division. The
Commissioner Customs, Central Excise (Appeals) Hyderabad confirmed
the said orders in the appeals filed by the Assessee. The Customs,
Excise and Service Tax Appellate Tribunal, South Zonal Division,
Bangalore dismissed the appeals filed by the Assessee.
                                                                             B
       26. The As.sessee approached the High Court of Andhra Pradesh
by filing Central Excise Appeals. By a judgment dated 19.02.2014, the
High Court of Andhra Pradesh allowed the Central Excise Appeal Nos.
9, 10 and 51 of2004 and 21 of2005. The appeals were allowed, as being
squarely covered by the judgment of the Madras High Court in Addison
and Company Ltd., Madras Vs. Collector of Central Excise,                    c
Madras reported in (1997) 5 SCC 763.
       27. The Revenue has filed Special Leave Petitions against the
said judgment dated 19.02.2014. Special Leave Petition (C) Nos. 12282,
16141and16142 of2016 were filed by the Revenue against the judgment
dated 01.07.2015 of the Division Bench of the Andhra Pradesh High            D
Court which followed its earlier judgment dated 19.02.2014. The issues
involved in the above Civil Appeals are similar to that of Civil Appeal
No. 7906 of 2002.
     28. The Appeals filed by the Revenue are allowed, in terms of the
judgment in Civil Appeal No. 7906 of2002.                                     E

Civil Appeal No. 14689 of 2015
       29. The above Civil Appeal is filed by the Commissioner of Central
Excise and Customs challenging the judgment of the Andhra Pradesh
High Court in Central Excise Appeal No. 21 of2004. The Respondent-
                                                                              F
Assessee manufactures Pesticide formulations which are used as
pesticides in agricultural farms. The Pesticides are sold at the factory
gate and also through depots. The Assessee submitted an application for
refund towards allowable discounts after the removal of goods from the
factory. Credit notes were issued by the Assessee in favour of the
buyers towards trade discounts which also contained a component of           G
the excise duty. There is no dispute regarding the fact of payment of the
excise duty originally by the manufacturer being passed on to his buyers.
The refund claim of the Assessee was rejected by the Deputy
Commissioner vide Order-in-Original No. 58 of2002 dated 30.12.2002.
The above said order was reversed by the Commissioner of Customs
                                                                              H
612            SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A     and Central Excise by his order dated 12.03.2003.
             30. The Revenue filed an appeal before the Customs, Excise and
      Service Tax Appellate Tribunal, South Zonal Division, Bangalore which
      was allowed. The Assessee preferred an appeal to the High Court
      aggrieved by the order of the Customs, Excise and Service Tax Appellate
B     Tribunal, South Zonal Division, Bangalore. The High Court following its
      own judgment in Andhra Pradesh Paper Mills Vs. Commissioner of
      Central Excise allowed the appeal. The point in this appeal is identical
      to the issue in Civil Appeal No. 7906 of2002. The Appeal filed by the
      Revenue is allowed in terms of the judgment in Civil Appeal No. 7906 of
      2002.
 c    Special Leave Petition (C) No. 25055 of 2009
            Leave granted.
             31. The Assessee is engaged in the processing of man-made fibre.
      Prior to 11.06.200 I the CENVAT credit admissible on the declared inputs
D     used in the manufacture of process of man-made fibre was 45 per cent.
      The net duty payable on the fibre was 55 per cent of the effective duty.
      On 11.06.2001, a notification was issued increasing CENVATcredit from
      45 per cent to 50 per cent which resulted in the net duty payable being
      50 per cent. The Assessee continued to pay the effective duty at 55 per
      cent for a short period between 11.06.200 I to 13 .06.200 I. Tile effective
 E    duty of excise is 16 per cent and the duty payable from the personal
      ledger account prior to the notification dated 11.06.2001 was 8.8 per
      cent and after 11.06.2001 the duty payable is 8 per cent. The Assessee
      made an application for refund of Rs. 61, 146/- paid in excess on
      31.07.2001. The said application for refund was rejected by an Order-
      in-Original dated 12.08.2002 by the Assistant Commissioner, Bhilwara
 F
      on the ground that the Assessee was a job worker engaged in the
      processing of grey fabric and that the said fabric was returned to the
      owners of the fabric who sold the processed fabric in the market. It
      was also held thatthe incidence of the duty ~as passed on to the ultimate
      customers/consumers before the debit notes were raised by the owners
 G    of the fabric. As the duty paid at 8.8 per cent was passed on by the
      owner of the fabric to the ultimate consumer the processor was not
      entitled for a refund.
            32. The Assessee approached the Commissioner Appeals, II
      Customs & Central Excise, Jaipur by filing an appeal which was rejected
 H    by an order dated 27.02.2003. The Central Excise and Service Tax
  COMMISSIONER OF CENTRAL EXCISE, MADRAS v. M/S.                               613
     ADDISON & CO. LTD. [L. NAGESWARA RAO, J.]

Appellate Tribunal by its order dated 11.05 .2005 allowed the appeal filed      A
by the Assessee on the ground that the incidence of duty was not passed
on by the Assessee to the customers. The customers protested to the
charging of the net duty payable at 8.8 per cent instead of 8 per cent in
spite of the notification issued on 11.06.2001. This protest was made
without any delay so the question of passing the incidence of duty by the
                                                                                B
owners of the fabric to their customers does not arise.
       33. In Central Excise Appeal No. 34 of2005 filed by the Union
oflndia through Commissioner of Central Excise, Jaipur, the High Court
of Judicature for Rajasthan at Jodhpur continued the order of the Central
Excise and Service Tax Appellate Tribunal. Challenging the said judgment
of the High Court dated 26.11.2008, the Union of India has filed the            c
above Appeal. The contention raised by the Revenue before the High
Court regarding the presumption under Section 12-B of the Act was
rejected by the High Court by holding that once the Assessee shows
that he has not passed on the duty to his buyer, then the burden shifts to
the Revenue. The submission that there is a presumption of the duty             D
being passed on to the ultimate consumer was not accepted by the High
Court. The High Court held that the claim for refund should be accepted
once the Assessee shows that he has raised a credit note regarding the
excess duty. The High Court had further held that passing on the burden
of excise duty to the ultimate buyer cannot be left in the realm of
presumption.                                                                    E

       34. In Civil Appeal No. 7906 of2002, we have already held that in
the claim for refund of excess duty paid can be allowed only in case
where the burden of duty has not been passed on to any other person,
which includes the ultimate consumer as well. The findings in the Order-
in-Original and the Order-in-Appeal are that the excise duty paid originally    F
at the rate of 8.8 per cent was passed on from the Assessee-processor
to the owner of the fabric and later to the customers. The point in this
Appeal is also identical to that of Civil Appeal No. 7906 of2002. The
above appeal of the Revenue is allowed.
Civil Appeal No. 8488 of 2009                                                   G
       35. The respondent-Assessee is a 100 per cent Export Oriented
Unit (EOU) manufacturing cotton yarn. The respondent filed an
application forrefund ofan amount of Rs. 2,00,827/-on 14.08.2002 on
the ground that it had paid excess. excise duty at the rate of 18.11 per
cent instead of9.20 per cent. The Assessee initially passed on the duty         H
614              SUPREME COURT REPORTS                            [2016] 9 S.C.R.



A     incidence to its customers. Later the Assessee returned the excess
      duty amount to its buyers which was evidenced by a certificate issued
      by the Chartered Accountant on 02.08.2002. The refund claim was
      rejected by the Deputy Commissioner of Central Excise, Kolhapur
      Division vi de an order dated 24.09 .2002 on the ground that the Assessee
      did not submit either the credit notes or the Chartered Accountant's
B
      certificate at the time of filing the refund application. Not satisfied with
      the genuineness of the documents the Deputy Commissioner rejected
      the refund claim. The Commissioner (Appeals) Central Excise, Pune
      allowed the appeal filed by the Assessee by taking note of the certificate
      issued by the Chartered Accountant and the credit notes dated 29 .07 .2002.
c     The Appellate Authority accepted the Assessee's contentions and held
      that there was no reason to doubt the genuineness of the documents
      produced. The Appellate Authority allowed the appeal of the Assessee
      and the said order was confirmed by the Central Excise and Service
      Tax Appellate Tribunal vi de judgment and order dated 06.10.2005. The
D     said order of Central Excise and Service Tax Appellate Tribunal was
      further confirmed by the High Court of Judicature at Bombay in Central
      Excise Appeal No. I 00 of2008 filed by the Revenue. The Revenue has
      filed the above Civil Appeal challenging the validity of the judgment of
      the High Court in Central Excise Appeal No. 100 of2008.
             36. Except for a factual dispute about the genuineness of the
 E    certificate issued by the Chartered Accountant and the credit notes raised
      by the Assessee regarding the return of the excess duty paid by the
      Assessee, there is no dispute in this case of the duty being passed on to
      any other person by the buyer. As it is clear that the Assessee has borne
      the burden of duty, it cannot be said that it is not entitled for the refund of
 F    the excess duty paid. In view of the facts of this case being different
      from Civil Appeal No. 7906 of 2002, the appeal preferred by the
      Revenue is dismissed.
         37. As held above, Civil Appeal Nos. 7906 of2002 and 14689 of
   2015 are allowed. Civil Appeals arising out of Special Leave Petition
G (C) Nos. 18426 of2015, 18423 of2015, 18425 of2015, 23722 of2015,
   12282 of2016, 16142 of2016, 16141 of2016 and 25055 of2009 are also
   allowed in terms of the judgment in Civil Appeal No. 7906 of2002. Civil
  ·Appeal No. 8488 of2009 is dismissed. No order as to costs.
      Devika Gujral                                                Appeals disposed of.

H