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2016 (5) TMI 836 - CESTAT MUMBAI

2016 (5) TMI 836 - CESTAT MUMBAI - TMI - Whether the refund claim can be sanctioned without availability of proof of payment in the shape of Original TR 6 Challan - Appellant paid duty which was acknowledged by the department - Held that:- it is observer that the departmental authority have not verified from their accounts department that whether the payment has been credited in the government account or otherwise, therefore without carrying out such exercise merely in absence of original TR 6 C .....

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f above method was carried out therefore only for want of Original TR 6 Challan rejection of the refund claim is not proper. For this reason matter needs to be remanded to the original adjudicating authority to verify payment of duty. - Period of limitation - Refund claim - Duty deposited as pre-deposit at the stage of appeal - Held that:- it is settled legal position that refund will arise only when issue of demand is settled. Since the demand had been confirmed by the Adjudicating authorit .....

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e refundable only after demand is dropped. In the present case the demand is dropped vide adjudication order dated 16/7/2007 and the refund claim was filed on 17/10/2007 i.e. well within the stipulated period from the date of Tribunal order. Therefore, the issue of time bar is in favour of the appellant in view of the judgment of Hon’ble Supreme Court in case of West Coast Paper Mills Ltd [2004 (2) TMI 680 - SUPREME COURT OF INDIA], therefore the demand is not time bar. - Refund claim - Unju .....

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rsons. There is force in the argument of the appellant that in case the price are fixed by the government as per APM, unjust enrichment is not applicable as the duty paid or payable does not influence price fixed by the government. C.A. also has given the certificate to this effect that incidence of duty paid by the appellant has not been passed on to any other persons. Though C.A. certificate alone cannot be basis of proof that there is no unjust enrichment, but in the present case C.A. certifi .....

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MR. RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri. Gajendra Jain, Advocate with Shri. Ajij Khan, Advocate For the Respondent : Shri. Hitesh Shah, Commissioner(A.R.) ORDER PER : RAMESH NAIR This appeal is directed against Order-in- Appeal No. YDB /94/RGD/2011 dated 30/1/2011 passed by the Commissioner of Central Excise (Appeals)-II, Mumbai, whereby Ld. Commissioner(Appeals) by upholding the Order-in-Original No. 33/09-10 dated 31/3/2010 rejected the appeal of the appellant. 2. The fact of t .....

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re-deposit of ₹ 10 Crores under protest on 29/3/1991. Meanwhile, the dispute on dutiability of Lean Gas traveled upto this Tribunal wherein this Tribunal vide Final Order dated 16/7/2007 partly allowed the appeal thereby Tribunal dropped the demand for the period from 31/3/1981 to 30/11/1984. For the balance period after December, 1984 the matter was remanded to the Adjudicating authority for the purpose of re-quantification of the demand. Aggrieved by the portion of the order by which dem .....

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ments as proof of payment were not submitted alongwith refund claim. A corrigendum dated 3/2/2009 to the aforesaid show cause notice was also issued proposing rejection of the claim on the ground of unjust enrichment too. Vide Order-in-Original dated 5/4/2010 the Asstt. Commissioner rejected the refund claim of ₹ 48.99 Crores on the following grounds:- (a) The refund claim was sought for only on the basis of photocopy of few letters written by the department to the appellant. (b) The appel .....

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e Order dated 5/4/2010, the appellant filed appeal before the Commissioner(Appeals) who vide impugned order rejected the appeal. Aggrieved by the said impugned order appellant filed this appeal. 3. Shri. Gajendra Jain, Ld. Counsel appearing on behalf of the appellant, submits that refund claim was filed on 17/10/2007 which arose due to CESTAT final order dated 16/7/2007 on the issue of dutiability on Lean Gas, therefore refund claim was filed within three months from the date of the order settli .....

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ce on the following judgments: (a) PRATAP STEELS LTD. Versus COMMR. OF CUS. & C. EX., (APPEALS), BANGALORE[2001 (132) E.L.T. 477 (Tri. - Bang.)] (b) MANIK MACHINERY MAFS. PVT. LTD. Versus COMMISSIONER OF C. EX., MUMBAI [2003 (157) E.L.T. 439 (Tri. - Mumbai)] (c) OPEL ALLOYS PVT. LTD. Versus COMMISSIONER OF C. EX., GHAZIABAD [2010 (249) E.L.T. 408 (Tri. - Del.)] (d) MAK CONTROLS AND SYSTEMS (P) LTD. Versus COMMR. OF C. EX., COIMBATORE [2009 (245) E.L.T. 365 (Tri. - Chennai)] (e) SURBHI ENTERP .....

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A 3 forms of appeal, Honble CESTAT while disposing stay application vide stay order dated 3/5/2001 has recorded the contention of the appellant that they have deposited ₹ 49 crores. Revenue knew factual position that the appellant have deposited ₹ 49 Crores. The appellant averred on oath way back in 1992 in the verification of appeal filed before the Tribunal. He submits that there are chain of correspondence not only from the appellant to the department but also confirming the same .....

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respondence there is corroboration of payment of duty to the tune of ₹ 49 Crores. He submits that due to old case the TR 6 Challan got lost and is not traceable. Department is not suppose to sanction the refund claim only by seeing TR 6 Challan, before sanction of refund TR 6 challan and payment made thereunder should be verified from their accounts department that whether the amount shown paid under particular TR 6 Challan has been credited in the government accounts or otherwise therefor .....

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s COMMISSIONER OF C. EX., SALEM[2009 (240) E.L.T. 447 (Tri. - Chennai)] (c) PUNJAB BEVERAGES (P) LTD. Versus COLLECTOR OF C. EX., CHANDIGARH[2000 (118) E.L.T. 506 (Tribunal)] (d) MAHARASHTRA STATE ELECTRICITY BOARD Versus COMMR. OF C. EX., NAGPUR[2004 (170) E.L.T. 541 (Tri. - Mumbai)] (e) JAY ENGG. WORKS LTD. Versus COMMISSIONER OF C. EX., HYDERABAD[2003 (158) E.L.T. 718 (Tri. - Bang.)] 3.2 As regard the issue of unjust enrichment, he submits that duty was not paid at the time of the clearances .....

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to appreciate that the Lean Gas which is sold by the appellant at a price which is fixed by the Government according to Administered Price Mechanism(APM), therefore the payment of duty otherwise not influenced price fixed on APM basis, for this reason also unjust enrichment is not involved. He also submits that appellant is Government of India undertaking, hence in such case question of unjust enrichment cannot arises. He placed reliance on following judgments: (a) PLAS PACK INDUSTRIES Versus C .....

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(IMPORT), MUMBAI [2008 (230) E.L.T. 671 (Tri. - Mumbai)] (f) State of Rajasthan & Ors. Vs. Hindustan Copper Ltd[1999(81) ECR 175(SC)] (g) SPIC Ltd Vs. Commissioner[2009(237) ELT 94(Tri. Chennai)] (h) S.A.I. L. Vs. Commissioner of Customs (Port), Kolkata[2008(230) ELT 647(Tri. Kolkata)] (i) C.C. E. Vs. Karnataka State Agro Corn Product Ltd[2006(202)ELT 47(Kar.)] (j) COMMR. OF CUS., Vs. Power grid Corpn. Of India Ltd. [2008(223) ELT 661(Tri. Bang.)] 4. Shri. Hitesh Shah, Ld. Commissioner(A.R.) .....

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on that even though some reference was made in the correspondence regarding the payment of excise duty but while making correspondence, Revenue has not verified whether the amount has actually been credited in the Government s account. Therefore correspondence alone cannot be accepted as proof of payment. 4.1 As regard time bar issue, it is admitted fact that appellant have not deposited the amount under protest therefore time period of one year for filing refund, if any, shall be reckoned from .....

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cate without having placed the documents before the C.A., therefore C.A. certificate cannot be accepted in regard to issue of unjust enrichment. In support of his argument, he placed reliance on the following judgments: (a) Superintending Engineer Vs. CCE, Trichy[2008(227) ELT (Tri. Chennai)] (b) CC(Exports), Chennai Vs. BPL Ltd.[2010(259) ELT 526(Mad.)] (c) SRK Products Pvt Ltd Vs. CCE, Bangalore -II[2009(240) ELT 434(Tri. Bang.)] (d) M/s. Hindustan Petroleum Corporation Ltd Vs. CCE, Mum-II[201 .....

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ioned without availability of proof of payment in the shape of Original TR 6 Challan. (b) Whether the refund is time bar. (c) Whether the refund claim is hit by provision of unjust enrichment. 6.1 We find that after the claimed deposit of duty in two installments, the appellant made various correspondence which was responded by the department, the said correspondence are reproduced below: [Images / correspondence not reproduced since not legible] From the above correspondence, it can be seen tha .....

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which no doubt is an evidence of payment of duty. However, in our view, in any matter of refund claim, department is not suppose to sanction the refund claim only by seeing the Original TR 6 Challan but the fact that whether the duty shown to have been deposited in TR 6 Challan, has been actually credited in the government treasury has to be ensured. From the entire proceedings, it is observed that the departmental authority have not verified from their accounts department that whether the payme .....

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actually been credited in the government account or otherwise. From the perusal of the proceedings before the lower authorities, we find that no such verification or efforts to find out the fact on the basis of above method was carried out therefore only for want of Original TR 6 Challan rejection of the refund claim is not proper. For this reason matter needs to be remanded to the original adjudicating authority to verify payment of duty as suggested above. 6.3 As regard the refund being time b .....

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pellant files refund within the one year from the date of payment, the same is either be rejected on the ground of pre-mature or the same shall be kept pending, therefore there was no purpose of filing refund claim within the one year from the date of payment of duty. In fact duty of ₹ 49 Crores paid as pre-deposit and the same became refundable only after demand is dropped. In the present case the demand is dropped vide adjudication order dated 16/7/2007 and the refund claim was filed on .....

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ance of the goods i.e. after issuance of show cause notice, the adjudication order, filing of appeal before the Commissioner(Appeals), therefore it is clear that the incidence of duty was at least not passed on to the customer, to whom the goods were supplied in respect of which duty of ₹ 49 Crores paid by the appellant. Contrary to this fact, Revenue could not produce any evidence that the amount of ₹ 49 Crores was recovered by the appellant either from the customers, to whom goods .....

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