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M/s Andhra Pradesh Paper Mills Ltd. Versus Commissioner of Central Excise, Visakhapatnam

2016 (11) TMI 1286 - CESTAT HYDERABAD

Refund claim - duty on Sub-Standard Kraft Paper mistakenly - ignorance of Notification No. 217/86-CE dated 01.031986 - time bar - whether unjust enrichment will be applicable to the refund of the duty finalized after 25.06.1999 but pertaining to the period prior to 25.06.1999? - Held that: - The issue whether unjust enrichment will be applicable to the refund of the duty finalized after 25.06.1999 but pertaining to the period prior to 25.06.1999 was held to be in favour of the assessee by the La .....

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1999 and will be applicable only w.e.f. 25.06.1999 - the refund cannot be credited to the Consumer Welfare Fund enrichment. The impugned order is set aside and I hold that the appellant is eligible for sanction of refund - appeal allowed - decided in favor of appellant. - Appeal No.E/2013/2016 - FINAL ORDER No.A/31035/2016 - Dated:- 20-10-2016 - Ms. Sulekha Beevi, C.S., Member (J) Sh. S. Thenmozhi, advocate for the appellant. Sh. Guna Ranjan, Superintendant (AR) for the respondent. [Order per: S .....

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The department however issued a Show Cause Notice proposing to deny refund, Adjudication the refund sanctioning authority allowed claim to the extent of ₹ 7,05,812.57/- on the duty paid during the last six months, white at the same time rejected the balance of ₹ 29,80,997/- as being time barred. 2. Aggrieved by the said order, the appellant preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide order No. 57/96 dated 06.06.1996 directed that the refund .....

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earlier sanctioned refund claim of ₹ 29,80,997/- but at the same time ordered to transfer same to Consumer Welfare Fund on the ground that e appellant had not proved that there was no undue enrichment. The appellant filed appeal against the said order, and in the second round of litigation also vide Order-in-Appeal No. 24/2006 dated 04.01.2006, the Commissioner (Appeals) rejected the appeal filed by the appellant. The appellant approached the Tribunal, Bangalore and vide final order No, 1 .....

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he Consumer Welfare Fund. Aggrieved by the said order the appellant appealed before the Commissioner (Appeals), who upheld the same. The appellants are thus before the Tribunal in the third round of litigation. 4. On behalf of the appellant, the Ld. Counsel MS. S Thenmozhi submitted that the Adjudicating Authority has sanctioned the refund and ordered the amount to be credited to the Consumer Welfare Fund for the reason that though the refund pertains to the period prior to 25.06.1999 Rule 9B of .....

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999 pertaining to the period prior to 25.06.1999. That the proviso to sub-rule (5) has no retrospective effect. 5. On behalf of the department, Ld. the, AR Sh. Guna Ranjan reiterated the findings in the impugned order. He strongly argued that when assessment is finalized after 25.06.1999, the proviso to sub-rule (5) of Rule 9B would come into application and the appellant is bound to establish that the incidence of duty has not been passed on. Having failed to establish that the refund claim is .....

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] relied upon by the Ld. Counsel for the appellant. The Larger Bench of the Tribunal in the said case observed as under: 8. After analyzing the law laid down by Supreme Court in the case of CCE, Mumbai-Il v, Allied Photographics Ltd, [2004 (166) E.L.T, 3 (S.C.)], Hon'ble High court in para of [he order in the case or Commissioner of Customs v. Hindalco Industries Ltd (supra) has held that there is distinction between making of a refund and claiming of a refund and that the amendment carried .....

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Central Excise Act, 1944. Even under the amendment made by Notification No, 45/99-C.E. (N.T.), dated 25-6-1999 only the procedure established under sub-section (2) of Section 11B of Central Excise Act, 1944 has been made applicable to the refunds arising out of finalization of provisional assessments under Rule 9B of the Central Excise Rules, 1944 Accordingly the procedure regarding application of unjust enrichment to refunds on finalization of provisional assessments will be applicable to the p .....

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