2019 (4) TMI 1837 - AT - Central Excise

Refund of excess CENVAT credit availed - principles of unjust enrichment - allegation that the benefit of Cenvat credit was not passed on in respect of higher duty paid - HELD THAT - The Order-in-Appeal dated 8-10-2015 was not challenged by Revenue therefore the findings in the said order cannot be challenged by Revenue before another Commissioner (Appeals) since the same are hit by principles of res judicata. The Order-in-Original is restored - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Appellant debited excess duty due to a programming error.
2. Eligibility of appellant to take suo motu credit.
3. Examination of whether excess duty paid has been passed on.
4. Claim for refund under the principle of unjust enrichment.

Analysis:
1. The appellant, a manufacturer of pre-fabricated steel structures, debited excess duty amounting to around Rs. 21.00 lakhs from June 2010 to July 2012 due to a programming error. The excess duty was availed as Cenvat credit in November 2012 after being noticed by the appellant.

2. The Revenue raised concerns about the eligibility of the appellant to take suo motu credit and issued a show cause notice in December 2013. The matter was adjudicated, and the amount was ordered to be recovered in an order dated December 26, 2014. The appeal against this order was decided by the Commissioner (Appeals) in an Order-in-Appeal dated October 8, 2015, where it was noted that the appellant had not passed on the excess duty paid.

3. The Commissioner (Appeals) remanded the matter to the original authority to examine whether the excess duty paid had been passed on. In the subsequent Order-in-Original dated March 28, 2017, the original authority allowed the Cenvat credit of around Rs. 21.00 lakhs as the excess duty paid had not been availed by the unit to which the goods were cleared.

4. The Revenue contended that there is no provision in Central Excise law to take suo motu refund and argued that the duty was passed on, thus refund cannot be claimed under the principle of unjust enrichment. However, the appellant's counsel argued that the Order-in-Appeal dated October 8, 2015, was not challenged by the Revenue, and the issue of suo motu credit could not be raised based on res judicata.

5. The Tribunal held that since the findings in the Order-in-Appeal dated October 8, 2015, were not challenged by the Revenue, they cannot be contested before another Commissioner (Appeals) due to the principles of res judicata. Therefore, the impugned order-in-appeal was deemed unsustainable, and the Order-in-Original dated March 28, 2017, was restored, allowing the appeal.