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Auxichem Versus Commissioner of Central Excise, Belapur

2015 (11) TMI 88 - CESTAT MUMBAI

Denial of refund claim - Unjust enrichment - Bar of limitation - Duty paid under protest - Held that:- Refund which was rejected on the ground of unjust enrichment by the original authority vide order dated 13/9/1989 has been allowed by setting aside the Order-in-Original. It is undisputed that after this order in appeal dated 24/4/1990, the Revenue has not filed any appeal against the said order dated 24/4/1990 therefore same attained finality. Thereafter by way of another show cause notice the .....

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er and Ld. Commissioner (Appeals) in the subsequent proceedings held that the provision of unjust enrichment is applicable in the case pertaining to the period before the enactment of provision of unjust enrichment and that the refund is sanctioned subsequent to the enactment. Even though contention of the Ld. Asstt. Commissioner is taken as correct but this contention could have been raised not by issuing fresh show cause notice but by way of appeal against the earlier order (dated 24/4/1999) o .....

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nt in the impugned order is not sustainable. - impugned order rejecting claim on the ground of unjust enrichment as well as limitation is not sustainable, hence, the same is set aside. - Decided in favour of assessee. - Appeal No. E/2737/05 - Final Order No. A/2560/2015-WZB/SMB - Dated:- 25-6-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. Vishal Agarwal, Advocate For the Respondent : Shri. V.K. Shastri, Asstt. Commissioner (A.R.) ORDER Per : Ramesh Nair This appeal is direc .....

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der T.I. 15-AA and confirmed demand of duty ₹ 4,62,460/-. On appeal by the appellant in the classification case then the Collector, Central Excise (Appeals) Bombay vide Order-in-Appeal No. HN-2122/TH-371/85 dated 7/1/1986 upheld the said order of the adjudicating authority and held that product was correctly classified under T.I. 15-AA. Subsequently, appellant filed refund claim for ₹ 13,14,449/- for the period from 31/8/1982 to 28/1/1986. Meanwhile department filed appeal before CEG .....

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ellant filed appeal in the refund matter before the Collector Central Excise (Appeals) Bombay challenging the said order. The Collector C. Ex. (Appeals) vide Order-in-Original No. GSM-318/90/B-III dated 24/4/1990 allowed the appeal filed by the appellant on the ground that the question of unjust enrichment is alien to the provisions of Section 11B of CEA, 1944. After receipt of the Order-in-Appeal dated 24/4/1990, the Asstt. Collector of Central Excise issued another show cause notice proposing .....

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sly as possible at any date within six months from the date of receipt of the Writ order from the Court. Accordingly, the adjudicating authority rejected the refund claim on the ground that the appellant has passed on the incidence of duty to their customers. Being aggrieved by the said adjudication order, the appellant filed appeal before the Commissioner (Appeals), who rejected the appeal of the appellant on the ground of unjust enrichment vide the impugned order dated 16/5/2005, therefore the .....

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said order was not appealed against by the Revenue, as regard the unjust enrichment, it attained finality, therefore in the present round of litigation Asstt. Commissioner should not have issued show cause notice and rejected the claim on unjust enrichment. The Commissioner (Appeals) also gravely erred in taking u-turn in the impugned order in as much as he denied the refund claim on the ground of unjust enrichment. The Order-in-Appeal dated 30/3/1990 attained finality thereafter neither Asstt. .....

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filed beyond the one year, it is his submission that firstly in the first show cause notice the Asstt. Commissioner has not disputed limitation. In the same case it is not permissible in law to issue another show cause notice raising new ground i.e. limitation therefore whole proceedings in the show cause notice of the present case is vitiated and the rejection of refund on the ground of limitation is not sustainable. Without prejudice, he submits that refund arises due to settling of classifica .....

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ppellant s case also it cannot be said that there is no protest from the appellant. He also submits that the appellant filed classification list in the year 1982, when the dispute has started, wherein appellant categorically declared in the said classification list that duty will be paid in protest. The refund is for the period 1982-88 therefore the protest expressed by the appellant in the classification list filed in 1982 was operative through out the period till 1988 therefore payment of duty .....

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as regard the unjust enrichment as and when refund is processed for sanction, aspect of unjust enrichment has to be verified. Since in the present case, refund was not sanctioned so far therefore at the time of sanctioning the refund claim, unjust enrichment was correctly gone into by the sanctioning authority and found that appellant could not prove that incidence of refund amount has not been passed on to any other person. Ld. Lower authority has correctly invoked the provisions of unjust enr .....

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ent of duty under protest. Therefore Ld. Lower authority was correct in rejecting the refund on the ground of unjust enrichment and also on limitation. 5. I have carefully considered the submissions made by both sides. 6. In the impugned order the refund was rejected explicitly on the ground of unjust enrichment. However, though the original authority rejected the refund on the ground of unjust enrichment and on the issue of limitation also and appellant filed appeal on the both the points but f .....

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t it is observed that the Ld. Commissioner (Appeals) in the same case in first appellate order given following findings I have considered matter carefully; I am in agreement with the appellant that the subject of unjust enrichment is alien to the provisions of Section 11B of the Act ibid. Why Government desire to make such provisions, it would have incorporated the same in the Section itself and has been done under Section 11C of the Act. Even other wise, Central Board of Excise and Customs vid .....

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er this order in appeal dated 24/4/1990, the Revenue has not filed any appeal against the said order dated 24/4/1990 therefore same attained finality. Thereafter by way of another show cause notice the Asstt. Commissioner again raised point of unjust enrichment and the same was adjudicated against assessee and Commissioner (Appeals) upheld the same vide impugned order. I am very clear in my mind that such proceedings is absolutely non est and infructuous for the reason that once the issue has be .....

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. Even though contention of the Ld. Asstt. Commissioner is taken as correct but this contention could have been raised not by issuing fresh show cause notice but by way of appeal against the earlier order (dated 24/4/1999) of the Commissioner (Appeals). Since the department failed to file an appeal against the said order, the order dated 24/4/1999 passed by the Commissioner (Appeals) has attained finality and all the proceedings subsequent to that by way of another show cause and adjudication an .....

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