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2017 (12) TMI 329

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..... 662 - CESTAT NEW DELHI]. In absence of anything contrary on record to such cost report the unjust enrichment and issue of time bar would not arise and the same cannot be grounds to reject the refunds - refund allowed - appeal dismissed - decided against Revenue. - E/4020-R/99, E/3142, 3143/02 - A/90756-90758/17/EB - Dated:- 14-11-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri N. N. Prabhudesai, Supdt. (A.R.) for Appellant/Respondent Shri M.H. Patil, Advocate for Respondent/Appellant ORDER Per : Ramesh Nair All these three Appeals No. E/4020-R/99, E/3142/02 E/3143/02 involved common issue of refund and hence taken up for disposal together. Appeal No. E/4020-R/99-Mum has been filed by the Commissioner of Central Excise, Mumbai-I against Order-in-Appeal dt. 31.08.99 and the amount involved is ₹ 55,92,105/- plus ₹ 1,39,323/-. The Appeal No. E/3142 and E/3143/02 have been filed by M/s Swan Mills against common Order-in-Appeal dt. 28.03.2002 wherein the Commissioner (Appeals) has set aside the orders dt. 01.01.2001 of the adjudicating authority sanctioning refund of ₹ 55,92,105/- plus ₹ 1,39,323/ .....

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..... 02/2001 dt. 09.01.2001 claim for ₹ 29,25,044/- was sanctioned. The Revenue filed appeal before Commissioner (Appeals) against Order dt. 01.01.2001 and 09.01.2001 who vide Order-in-Appeal dt. 28.03.2002 set aside both the Order-in-Original. M/s Swan has filed the Appeal Nos. E/3142/02 E/3143/02 against the said Order-in-Appeal dt 28.03.2002 before the Tribunal. All the three appeals were taken up together by the Tribunal and resultantly the Appeal filed by M/s Swan Mills were dismissed whereas the appeal filed by revenue was allowed. The order of the Tribunal was set aside by the Hon ble High Court and the appeals were remanded back to the Tribunal for fresh consideration. The Hon ble High Court order is reproduced below: By the present appeal which is directed against the Order dated 25-2-2005, passed by the Customs, Excise Service Tax Appellate Tribunal, West Regional Bench at Mumbai [2005 (184) E.L.T. 290 (Tribunal)], the appellants submit that the substantial questions of law on which this appeal is admitted would require a remand of this case back to the Tribunal. 2. The appeal has been admitted on the following two substantial questions of law :- .....

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..... dated 14-9-1998 and 30-10-1998, two appeals were filed before the First Appellate Authority. The First Appellate Authority was of the opinion that certain clarifications will have to be made and they are not to be found in the impugned orders and hence restored the refund claim and for reconsideration by the Competent Authority. However, the Revenue was aggrieved by this direction of the First Appellate Authority and it approached the Tribunal. In the meantime, on remand, the Authority in-charge of sanctioning the refund issued such directions which required the appellants to file a detailed written submissions and which came to be accordingly filed. Thereupon, further Orders-in-Original and on remand came to be made in the month of January, 2001. The refund claims were rejected on the ground that the principle of unjust enrichment which was invoked has been rightly invoked by the Department. Therefore, there was an order passed. But it appears that the Department filed Review Appeals against the two Orders-in-Original and that is on the assumption that the two Orders-in-Original grant partial relief. In these appeals and which were disposed of on 28-3-2002, the Order-in-Original w .....

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..... he issue on both points, namely, whether there is a period of limitation prescribed and at the relevant time which is attracted and that the doctrine of unjust enrichment can be invoked and applied to the facts and circumstances of the present case. 10. We have been left with no alternative but to remand the appeals back to the Tribunal. We accordingly set aside the impugned order. We restore the appeals to the file of the Tribunal for a decision afresh on merits and in accordance with law. The Tribunal should not be influenced by any of its earlier findings and conclusions. It should decide the matters afresh. We equally clarify that beyond referring to the legal position and ordinarily to be found, we have not expressed any opinion on the rival contentions. The appeal is allowed accordingly. There will be no order as to costs . In view of the above High Court order, all the three appeals are taken up for fresh disposal. 3. Shri M.H. Patil, Ld. Counsel appearing for M/s Swan Mills submits that the issue arising in all the appeals are common i.e as to whether the refund claims are hit by limitation of time and are hit by doctrine of unjust enrichment. He reiterates t .....

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..... ion cannot be raised either by Adjudicating authority or by the Ld. Commissioner(Appeals). In the second round of litigation as held in the following judgment. (i) Commr. Of C. Ex., Raipur Vs. Simplex Engg. Foundary Works P. Ltd. - 2016 (333) E.L.T. 112 (Tri.-Del.) (ii) Bajaj Auto Limited Vs. Union of India - 2003 (151) E.L.T. 23 (Bom.) (iii) Britannia Industries Ltd. Vs. Commissioner of C. Ex., Kolkata-IV - 2006 (202) E.L.T. 529 (Tri.-Kolkata) (iv) Commissioner of Customs, Mumbai Vs. Toyo Engineering India Limited - 2006 (201) E.L.T. 513 (S.C.) (v) Commissioner of Central Excise Vs. Gas Authority of India Ltd. - 2008 (232) E.L.T. 7 (S.C.) In view of the above settled legal position, the refunds cannot be rejected on the grounds of time bar. It is also fact that in case of refund of ₹ 29,25,044/- the refund arose on valuation was approved by AD (Costs) on 3.4.1996 and claim was filed on 2.7.1996. Since the AD(Cost) finalized the value the assessment can be deemed as provisional assessment as held by the Hon ble Supreme Court in case of M/s SAMRAT INTERNATIONAL (P) LTD. Vs. CCE - 1992 (58) E.L.T. 561 (S.C.) and Ester Industries Vs. C .....

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..... n, is absorbed in the cost of the cloth/fabrics. On verification of proforma C regarding cost of sales of cloth sold it was observed that majority of the cloth sorts were sold in losses and hence there was overall loss in the sale of cloth/fabric. As a result, the duty excess paid on yarn captively consumed appears to have been absorbed in the profit and losses of the Company. Hence, the excess duty of ₹ 13,15,564/- paid on captively consumed yarn may be refunded to the assessee. Department to verify the actual calculation of excess duty paid before making the refund. I have again perused the Assistant Director (Cost) Report dated 08/01/2001 and the relevant costing data alongwith sales register, sales invoices, trial balance, groupings etc. for the yarn sold in the market for the period 1994-95 and I came to the conclusion that the amount of refund claimed on account of yarn sold in the market is refundable to the party and I find no reason and ground to disagree with Assistant Director Cost report pertaining to the admissibility of the Refund to the party for the serial no.(A) also as observed by Assistant Director (Cost) in his Report dated 08/01/2001 who is the exper .....

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