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2016 (9) TMI 224 - CESTAT ALLAHABAD

2016 (9) TMI 224 - CESTAT ALLAHABAD - TMI - Refund - unjust enrichment - Whether the revenue is justified in refusing refund for the period September 2000 to February 2001 on the ground of unjust enrichment or not, when the amount of duty paid by the appellant under protest, during pendency of the appeal before the Honourable Supreme Court, when the issue was sub-judice and admittedly no duty was collected from the buyer of the products - Held that:- the Id. Commissioner have misconceived the co .....

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the appellant have deposited the amounts by TR-6 Challans and debited the duty during pendency of their appeal before Honourable Supreme Court, by way of debit entry made in the PLA (Personal Ledger Account). Accordingly there is no question of unjust enrichment involved under the facts and circumstances of the case. Therefore, I direct the Adjudicating Authority to disburse the refund of ₹ 1,86,40,263 within a period of 30 days from the date of receipt of this order along with interest, f .....

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filed by the manufacturer assessee is whether the amount of duty paid by the appellant under dispute, during pendency of the appeal before the Honourable Supreme Court, When the issue was sub-judice and admittedly no duty was collected from the buyer of the products, whether the revenue is justified in refusing refund for the period September 2000 to February 2001 on the ground of unjust enrichment. Further it is an admitted fact that the appellant have shown the amount receivable in their bala .....

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ment were made on being pressurised by the revenue, pending appeal of the assessee before Honourable Supreme Court, wherein the issue of classification was pending. The Honourable Supreme Court decided the issue of classification in favour of the appellant assessee by its order dated 01/4/2005. 2. The brief facts are that both the appeals are arising for the same facts and Order-in-Original, hence the appeals are taken together for disposal. The appellants were inter alia, engaged in the manufac .....

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t classification under Chapter heading 33.04 of the Central Excise Tariff Act, 1985. After several stages of proceedings, the matter reached this Tribunal - CESTAT, New Delhi wherein vide Final Order No. 158-159/03-B dated 28.02.2003, the Tribunal decided the issue in favour of the department. 3. Being aggrieved with the above Order dated 28.02.2003 passed by this Tribunal, New Delhi, the appellants preferred an Appeal before the Hon'ble Supreme Court of India, and upon insistence of the dep .....

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xcise Tariff Act, 1985. The Hon'ble Supreme Court vide its separate order dated 01.04.2005 also held that no penalty is imposable on the appellants. 5. Pursuant to the above decision of the Hon'ble Supreme Court, the appellants filed a refund claim dated 03.05.2005 along with all evidences for an amount of ₹ 1,96,65,263/- deposited during the pendency of the appeal. In the meanwhile, the appellant also approached the Hon'ble High Court of Allahabad which vide its interim order .....

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and allowed the balance amount of ₹ 1,86,40,263/-, but the balance amount was directed to be credited to the Consumer Welfare Fund. The applicants preferred an appeal before Ld. Commissioner (Appeals). However, the Ld. Commissioner (Appeals) vide Order dated 30.08.2006 (impugned order) remanded the matter back to the adjudicating authority to consider the submissions of the appellants with respect to the issue of unjust enrichment. 7. Against the aforesaid impugned order of the Ld. Commiss .....

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3/- to Consumer Welfare Fund on the ground of Unjust Enrichment. Aggrieved by the above order passed by the Ld. Assistant Commissioner, the applicant filed an appeal with the Ld. Commissioner (Appeals). However, the Ld. Commissioner (Appeals) vide the impugned order dated 30.05.2008 rejected the refund claim on the ground that money has been raised from their buyers i.e. M/s Dabur India Limited by sale of their excisable other products and the same money has been utilized for payment of Central .....

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he appeals together for disposal. 10. Heard the Id. Counsel for the appellant who have urged that the refund claim under the fact and circumstances is not hit by the principle of unjust enrichment. It is stated that, it is an admitted fact that the appellant have not charged any Excise duty on the invoices raised for clearance of Lal Tail, during the disputed period, or subsequently. 11. Thereafter the appellants filed refund claim on 3/5/2005 along with the evidences of deposit of tax during pe .....

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rable, remanded the matter to the Adjudicating Authority for further examination. In the 2nd round the Assistant Commissioner have observed that on examination he finds from the documents submitted that the amount of claim recoverable ₹ 10,25,000/- against the head l excise duty, recoverable' on Lal Tail for the year ending 31/3/2004, at page No. 156 of the letter which copy is the same as enclosed with the writ petition. Likewise at page number 158 of the letter the appellant have sub .....

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rable towards Excise duty seems to be by way of an Afterthought. Further observing as to passing of incidence of duty, that the duty is realised by way of selling Lal Dant Manjan. He observed that on examination of bank statement of the appellant, it is found that a total of ₹ 1,96,65,263/- deposited and refund claimed by the appellant, ₹ 10,25,000 have been sourced by them on their own, whereas the rest of ₹ 1,86,40,263/- has been sourced from payments received from Dabur Indi .....

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