2010 (8) TMI 728 - HC - Central Excise

Unjust enrichment - Captive consumption - refund of excise duty paid - held that - matter was taken up by the appellant before the Division Bench which considered the appeal and dismissed by an order clearly shows that the issue of unjust enrichment was very much alive in so far as the respondents were concerned. Under these circumstances it would be incorrect to hold that the case of the appellant is covered by the decision of the Supreme Court in Triveni Chemicals Limited (2006 - TMI - 1264 - SUPREME COURT OF INDIA) Assistant Commissioner was well within his powers to decide the issue of unjust enrichment appeal is disposed of accordingly.

Summary

Issues:
1. Whether captive consumption of aqua solution of urea and phenol was excisable to Central Excise duty.
2. Whether the question of unjust enrichment had come to an end after a specific court decision.
3. Whether the Assistant Commissioner had the authority to reconsider the matter of unjust enrichment.

Analysis:
Issue 1: The appellant, a manufacturer of plywood and aqua solution of urea and phenol, questioned the excisability of captive consumption of aqua solution of urea and phenol under the Central Excise Act. A Division Bench previously ruled that these items were not excisable, leading to a refund order for the appellant.

Issue 2: The introduction of Section 11B in the Central Excise Act regarding unjust enrichment post the Division Bench's decision raised concerns. The appellant argued that the matter concluded with the court's decision, but the court disagreed. The court noted that subsequent appeals and orders indicated that the issue of unjust enrichment remained unresolved.

Issue 3: Despite the appellant's contention that the Assistant Commissioner could not revisit the unjust enrichment issue, the court held that the introduction of Section 11B necessitated a fresh consideration. The court emphasized that the matter was not conclusively settled by past orders and that the issue of unjust enrichment remained alive, allowing the Assistant Commissioner to address it.

In conclusion, the court affirmed that the issue of unjust enrichment was still relevant, and the Assistant Commissioner had the authority to decide on it. The court upheld the decision to reconsider the matter, dismissing the appellant's arguments that the matter had concluded with previous court orders.