TMI Blog2015 (1) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... hey did not do so because the matter was pending before Hon’ble Supreme Court. Further, I find that for holding the refund claim of the appellants as time-barred, the adjudicating authority had relied upon clause (ec) supra. But I find that the clause (ec) supra of Explanation to Section 11B of the Act was introduced w.e.f. 11-5-2007, whereas the refund claim in the present appeal pertains to the period from March, 2001 to October, 2002. I find that during the period prior to 11-5-2007, there was no ‘relevant date’ prescribed in the Explanation to Section 11B supra in so far as consequential refunds are concerned. Further, I find that clause (ec) supra had not been given retrospective effect and thus, the same can be made applicable only in respect of the duties which had been paid after the said amendment and for which the refund claims are being filed thereafter. Therefore, I hold that the clause (ec) supra of Explanation to Section 11B of the Act, cannot be applied to the duties paid for the periods prior to the said amendment. Clause (ec) is also not applicable to the present case as the duty was paid ‘under protest’ by the appellants. This is evident from the letter dated 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the MRP of the products, it clearly implies that the appellants had not passed on the duty element to the buyers. Thus, I hold that the appellants had succeeded in proving that the products in question manufactured and sold by them, did not include duty paid under protest. Refund is not hit by the doctrine of unjust enrichment, neither hit by time limitation - Decided in favour of assessee. - Order-in-Appeal No. JAL-EXCUS-000-APP-320-2013-14 - - - Dated:- 10-3-2014 - Shri Anil Kumar Gupta, Commissioner (Appeals) Shri Amit Jain, Advocate and Ms. Shruti Kakkar, General Manager (Legal), for the Assessee. ORDER M/s. PepsiCo India Holdings Pvt. Ltd. (Frito Lays Division), Channo, Sangrur [earlier known as M/s. Pepsi Foods Private Limited] (for brevity as the appellants ) have filed the above-mentioned appeal against Order-in-Original No. 04/CE/AC/SNG/Refund/2013, dated 17-6-2013 (for brevity as the impugned orders ) passed by the Assistant Commissioner, Central Excise Division, Sangrur (for brevity as the adjudicating authority ). 2. Briefly stated, the appellants are engaged in the manufacture of various items e.g. Lehar Kurkure, Cheeto Wheels (for brevity th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim for refund of the erroneously paid excise duty has to be filed within one year from the relevant date; that however, the said section carves out an exception in cases where duty has been paid under protest; that the said section also prescribes various relevant dates for filing the refund claim to compute the time-limit of one year in different circumstances; ii. That the show cause notice which had been upheld by the impugned Order had referred to the definition of relevant date in terms of clause (ec) under the Explanation B to Section 11B of the Act contending that in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of the appellate Tribunal or any court, the date of such judgment, decree, order or direction will be the relevant date; that therefore, according to the impugned order, since the duty has become refundable on account of the judgment of the CESTAT passed in September, 2002, one year time limit has to be computed from the said date and if so computed, the refund claim filed in July, 2012 was time-barred; that the impugned order was incorrect for more than one reason; that firstly, the clause (ec) of Explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid under protest by the appellants had become refundable to the appellant not because of the order passed by the Hon ble CESTAT in 2002 but only after the Apex Court dismissed the Revenue s appeal in 2011; that the expression becomes refundable as a consequence of judgment employed in clause (ec) of Explanation to Section 11B is of significance; that the Apex Court dismissed the Revenue s appeal and the dispute attained finality by the order of the Apex Court in 2011 and the duties paid by the appellant had become refundable as a consequence of the order passed by the Apex Court; that therefore, assuming without admitting that clause (ec) to the Explanation to Section 11B is applicable to the present case, the relevant date would be the date on which the Apex Court dismissed the Revenue s appeal and not the date on which the CESTAT passed the order; that if that order of the Apex Court was reckoned as the relevant date, then the refund claim was well within time; v. that the refund claim was not hit by the bar of unjust enrichment; that the show cause notice had proceeded on the basis that since the products in question were subject to MRP based assessment under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pani Automobiles Ltd. v. CC - 2004 (176) E.L.T. 807 - Affirmed by the Hon ble High Court of Karnataka - 2009 (240) E.L.T. 8; Bhoruka Steel Ltd. v. CC - 2005 (188) E.L.T. 28; Corning S.A. v. CCE - 2005 (70) RLT 344 = 2005 (192) E.L.T. 355 (Tribunal); Beekay Hosiery Industries v. CC - 2005 (188) E.L.T. 301; Toyota Kirloskar Motor v. CCE - 2005 (187) E.L.T. 499; Transformers Electricals v. CC - 2005 (188) E.L.T. 60; Dabur India Ltd. - Final Order No. 199/2008, dated 10-4-2008 [2008 (228) E.L.T. 131 (Tribunal)]; CCE v. Saralee Household Bodycare India P. Ltd. - 2007 (210) E.L.T. 42 (Tribunal) = 2007 (7) S.T.R. 381 (Tribunal) - Approved by the Madras High Court - reported in 2007 (216) E.L.T. 685 (Mad.); Supdt. Engineer v. CCE, Trichy - 2008 (227) E.L.T. 303; Krishna International v. CC - 2008 (225) E.L.T. 364; MRF Ltd. v. CC (Port), Kolkata - 2008 (225) E.L.T. 246; Sanghvi Shoes Accessories P Ltd. v. CC - 2008 (224) E.L.T. 95; General Commodities Pvt. Ltd. v. Commr. of ST - 2010 (18) S.T.R. 460; vii. that the adjudicating authority wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the same; that in support of their contention they also relied upon following judgments :- ITC Bhadrachalam Paperboards Ltd. v. Commissioner of Central Excise - 2002 (146) E.L.T. 582; Girish Foods Beverages (P) Ltd. v. Commissioner of Central Excise - 2007 (211) E.L.T. 388; Swarup Fibre Industries Ltd. v. Commissioner of Central Excise - 2000 (120) E.L.T. 510; Printers (Mysore) Ltd. v. Commissioner of Central Excise - 2001 (132) E.L.T. 641. 4. Personal hearing in the cases was held on 8-1-2014. Ms Shruti Kakkar, General Manager (Legal) appeared on behalf of the appellants and stated that she may be given a short adjournment for one day as their advocate Shri Amit Jain from Delhi could not come today and would be able to come on 9-1-2014, if allowed. Accordingly, the case was adjourned to 9-1-2014. Shri Amit Jain, Advocate and Ms Shruti Kakkar, General Manager (Legal) appeared on 9-1-2014 on behalf of the appellants and reiterated the submissions made in their appeals. They further filed a compilation of case laws relied upon by them and emphasised their points. They also filed a compilation of various Annexures containing docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : .. Provided that.... Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, 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 export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertains to the period from March, 2001 to October, 2002. I find that during the period prior to 11-5-2007, there was no relevant date prescribed in the Explanation to Section 11B supra in so far as consequential refunds are concerned. Further, I find that clause (ec) supra had not been given retrospective effect and thus, the same can be made applicable only in respect of the duties which had been paid after the said amendment and for which the refund claims are being filed thereafter. Therefore, I hold that the clause (ec) supra of Explanation to Section 11B of the Act, cannot be applied to the duties paid for the periods prior to the said amendment. 7.2 Further, I find that the clause (ec) is also not applicable to the present case as the duty was paid under protest by the appellants. This is evident from the letter dated 7-3-2001 filed by the appellants with the Deputy Commissioner, Central Excise Service Tax Division Sangrur, intimating thereunder that they would pay the duty on Lehar Kurkure Namkeen and Cheetos Tomato wheels namkeen under protest. Therefore, the relevant date of one year for filing refund, become nugatory in the present case, as evident from the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been rebutted and the refund amount should be paid to the assessees; (ii) that the appellants had also communicated their intention to not recover duty from the customers and payment of duty under protest vide their letter dated 2001; (iii) that they had submitted a Chartered Accountant s certificate dated 18-2-2013, validating the entries in balance sheets of the M/s. Pepsi Foods Limited (PFL) M/s. PepsiCo India Holdings (PIH) for the material period; (iv) that there was no fluctuation in price of the products sold by the appellants during the disputed period and for the periods much after the disputed period; that in support of their contention they have relied upon the chart which showed the MRP at which the products in question have been sold during that period i.e. prior to 2001-02 during the disputed period, namely, 2001-02 and 2002-03 and much after the disputed period, namely, 2003-04 onwards; that the MRP of the products has remained unchanged in any of the periods, namely, when no duty was being paid and duty was being paid under protest and when the appellant stopped paying the duty on these products; that this showed that the payment of excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otest and shown to be recoverable from the department and further more there was no fluctuation in the MRP of the products, it clearly implies that the appellants had not passed on the duty element to the buyers. Thus, I hold that the appellants had succeeded in proving that the products in question manufactured and sold by them, did not include duty paid under protest. Accordingly, the reliance placed by the adjudicating authority on judgments in case of CCE, C ST, Cochin v. TECIL Chemicals Hydropower Ltd. [2012 (286) E.L.T. 19 (Ker.)] and Toyota Kirloskar Motor Ltd v. CCE, Aurangabad [2012 (286) E.L.T. 690 (T)] is distinguishable in the light of discussion above. On the other hand, the reliance placed by the appellants, on various judgments supra, is convincing and sustainable. Therefore, I hold that the refund is not hit by the doctrine of unjust enrichment. 9. In view of the above, I hold that the refund filed by the appellants is neither hit by time limitation nor by doctrine of unjust enrichment. 10. In view of the foregoing, the appeal filed by the appellants, is allowed with consequential relief and the impugned order is set aside accordingly. - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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