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2016 (10) TMI 950 - CESTAT HYDERABAD

2016 (10) TMI 950 - CESTAT HYDERABAD - TMI - Refund claim - Ayurvedic Medicaments(Pain Balm) - undue enrichment - Section 11B of the Act - rejection of refund mainly on the ground that the appellant had not provided any documentary proof to show that the provisional assessments for the earlier period 1985-1991 and have not provided the invoices for the period from March 1994 to April 1995 - Held that: - refund arising out of the finalization of provisional assessments during the period February .....

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d Mr. Madhu Mohan Damodhar, Member (Technical) Shri N. Viswanathan, Advocate for the Appellant Shri P.S. Reddy, AR for the Respondent [Order per: Sulekha Beevi,C.S.,] Brief facts of the case are that the appellants are manufacturers of Ayurvedic Medicaments(Pain Balm) falling under Chapter 30 of the First Schedule to the Central Excise Tariff Act, 1985. The present proceedings have a long history. Disputes arose with regard to the classification and valuation of the goods, manufactured and clear .....

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sion and also to examine the aspect of undue enrichment. Again vide Order-in-Original dated 10-03-1997, the claim was rejected as unsubstantiated under the provisions of Section 11B of the Act. Vide Order-in-Appeal dated 13-06-2001, the Order-in-Original was upheld. The matter reached the Tribunal and vide Final Order dated 08-08-2007, the issue was again remanded back to the Original Authority. In the said order the CESTAT, held as follows: "the fact pertaining to the duty having been paid .....

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en an opportunity to produce the evidence now produced before the Tribunal to establish that the incidence of duty has not been passed on to the customers… 1.3 Thereafter vide Order-in-Original dated 10-04-2008, the claim was again rejected on the ground that the claim was not substantiated; that the asessees failed to produce documentary evidence and no material evidence was produced for consideration as required under Section 11B of the Act. Again, the issue was remanded by the Commissi .....

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amount of ₹ 7,51,71,516/-. 1.5 Aggrieved by sanction of refund vide Order-in-Original dated 30-11-2009, the department filed an appeal to Commissioner (Appeals), and assessee filed appeal against rejection of balance amount. Vide order-in-appeal dated 30-08-2010 which is impugned herein the Commissioner(AppeaIs) upheld the order of original authority and rejected both appeals filed by department and as well as that filed by assessee. Hence this appeal by assessee. 2. The parties are refer .....

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ubmitted that the first show cause notice dated 03-12-1997and the subsequent order dated 10-03-1997 having categorically admitted the fact of appellant filing all documents with the department and further fact of verification by the authorities, the reason adduced vide its letter that these documents have not been produced by them is totally incorrect and grossly erroneous. 3.3 The authorities below having passed part of the refund claim amounting to which is not possible without the record bein .....

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o the authorities below to reject their claim on certain extraneous facts and reasoning and that too by recording the finding contrary to the admitted fact on record, and therefore prayed to set aside the impugned order to be set aside holding the same to be excessive, incorrect, and violative of the principles of judicial discipline. 3.5 Further, that authority below failed to see that the dispute on classification came to be finally settled with the passing of judgment dated 30-03-1995 by the .....

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-06-1999 exposes his total non application of mind and unsustainability of the order. 3.6 The further findings recorded by the authority that the claim of the appellant that since the assessments subsequent to 1991-92 were admittedly finalized before 25-06-1999 it is but logical that the assessment for the earlier period should also be treated as finalized prior to the said date, that there is possibility of leaving out the provisional assessments of particular year/s (in case a dispute exists f .....

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to the appellant. 3.7 In any case and without prejudice the authority having otherwise conceded that the provisional assessment was finalized in 1995 prior to the cut off dated i.e. 25-06-1999 he is duty bound to refund the amounts paid without application of the concept of unjust enrichment in terms of the decisions of this Hon'ble Tribunal and that of the Commissioner (Appeals) failure of which has resulted in gross miscarriage of justice. 3.8 The Commissioner (Appeals) having admitted in .....

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e period 1985 to 1991, the appellants have not produced documents to establish that the assessments were finalized. Therefore it cannot be said that the refund is not hit by unjust enrichment. 5. The appellant is before us aggrieved by the impugned order which rejected refund for the period prior to 1991-92 and 3/94 to 4/95 and also interest for the entire period. It is not disputed that assessments were provisional during the period 1985 to 1991 also. As the superintendant of Central excise vid .....

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uld have been done by the department itself and hence they should have been able to have the status of finalization known to them. This being so finding of lower authority, "in the absence of any evidence i hold that assessments for the period prior to 1991-92 were not finalized as on 25-06-1999 and hence not covered by order dated 30-09-2008 of the Commissioner of Central Excise (Appeals)" is fallacious. In fact it is seen that in the said order dated 30-09-2008, the first appellate a .....

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ay. The lower authority's order is silent on the date of finalisation of the provisional assessment orders. It is also seen that the Appellants have also produced the Chartered Accountants certificate to the effect that the incidence of the duty was not passed on to the buyers. However, the lower authority has rejected the certificate with a strange reasoning that there is no arithmetic breakup of the figures. In principle, / agree with the appellants' contention that they are entitled f .....

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y both sides and perused the records. The issue involved in this case is regarding the refund claim of the amount, which was provisionally assessed and subsequently finalized by the lower authorities. The entire thrust of the revenue is regarding the satisfaction of Doctrine of Unjust enrichment. We find that there was a dispute on classification and the assessments were provisional during the period February 1985 to 26.04.1995. if that be so, the refund arising out of the finalization of the sa .....

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