TMI Blog2011 (8) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... rya: This appeal under Section 35G of the Central Excise Act, 1944 ("Act") is at the instance of an assessee and is directed against an order dated June 15, 2007, passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata, in Excise Appeal bearing No.EDM-641/2006 thereby partly allowing the appeal of the appellant by directing refund of Rs.14.98 crore which was earlier deposited by the appellant by virtue of the orders passed by the Tribunal and the Hon'ble Supreme Court. The Tribunal, however, did not enter into the question of interest claimed by the appellant on the ground that the refund was allowed by the Tribunal on that very date. Being dissatisfied, the importer has preferred the present appeal before this Court. The facts leading to filing of the present appeal may be summed up thus: a) The appellant manufactured during the material period, namely, 1988 to 1992, inter alia, 'grey tyre cord fabrics' on job work basis for M/s. Dunlop (I) Ltd., out of yarn supplied by the said customer. The appellant completely stopped the said activity in the year 1993 and consequently, M/s. Dunlop India Ltd. had ceased to be the appellant's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.17,88,76,842/- but reduced the penalty to Rs.9,00,000/- vide final order No.A-536/KOL/2002 dated April 17, 2002. h) The Appellant then filed Civil Appeal No.8675 of 2002 before the Supreme Court against final order No.A-536/KOL/2002 dated April 17, 2002 of the Tribunal along with a stay petition. However, the Supreme Court, while admitting appellant's appeal, dismissed the stay petition vide order dated 19th January, 2004. i) Consequent to dismissal of appellant's stay petition, appellant, pending Civil Appeal No.8675 of 2002, made the following payments in terms of Section 35F of the Central Excise Act 1944 vide TR6 challans as detailed below: Sl.No. Date of payment Amount paid (in Rs.) TR6 Challan No. 1. 14.05.2004 10,000,000 Misc. No.1/2004-2005 2. 21.06.2004 10,000,000 Misc. No.2/2004-2005 3. 20.08.2004 15,000,000 Misc. No.3/2004-2005 4. 19.10.2004 15,000,000 Misc. No.4/2004-2005 5. 21.12.2004 20,000,000 Misc. No.5/2004-2005 6. 22.01.2005 39,800,000 Misc. No.6/2004-2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng expenditure incurred on account of Central Excise Duty, in support of non-passing of incidence of the said amount to buyers of the goods and to appear for personal hearing on March 28, 2005. This was required by invoking Section11B and Section12B of the Central Excise Act, 1944 despite the Deputy Commissioner being aware that the payment was made between 2001 and 2005. o) The Appellant appeared for the personal hearing on March 29, 2005, as allowed by the Deputy Commissioner, Serampore Division and resubmitted the refund-claim for Rs.14,98,00,000/- along with a covering letter dated March 28, 2005 wherein the appellant made detailed submissions as regards non-applicability of the doctrine of unjust enrichment under Section11B and non-availability of the presumption under Section12B of the Central Excise Act 1944. Appellant also enclosed a Chartered Accountant's certificate wherein, after verification of its records, the Chartered Accountant had certified that the amount for which the refund was claimed was not passed on to any other person and was being shown in the books of account of the appellant as 'Receivables'. Appellant also produced the requisite PandL Accounts and B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) to dispose of the appeal positively within 2 weeks from the date of receipt of the said order. u) The Commissioner (Appeals), thereafter, vide order in Appeal No.178/Kol-IV/2005 dated October 21, 2005 ordered refund of Rs.1,00,00,000/- deposited by the appellant on July 12, 2001 and credit of the balance amount of Rs.13,98,00,000/- to the Consumer Welfare Fund in terms of Section 11B(2) of Central Excise Act, 1944 holding that it was not pre-deposit under Sec.35F of Central Excise Act, 1944 and was hit by the doctrine of unjust enrichment. He also denied interest claimed by the appellant on the ground that the claim was beyond the scope of the show-cause notice, such claim of interest having not been referred to in the show-cause notice, ignoring the fact that claim for interest was made by the appellant in the refund claim lodged by it. v) The above order of the Commissioner (Appeals) was challenged by both the appellant as well as the Revenue before the Tribunal vide Appeal Nos.EDM-62/06 and No.EDM-9/-6 respectively. w) The Tribunal, vide final order No.A-538/Kol/-06 dated July 4, 2006 read with order No.M-302/Kol/06 dated July 13, 2006 passed in MA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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