TMI Blog2018 (3) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... et attracted to such refund claims, and the bar of unjust enrichment will not apply, as the said provisions of Section 11B of Central Excise Act, will apply to refund is a duty. Appeal dismissed - decided against Revenue. - Appeal No. E/30874/2017 - Final Order No. A/30247/2018 - Dated:- 20-2-2018 - Mr. M. V. Ravindran., Member ( Judicial ) Shri Guna Ranjan, Superintendent ( AR ) for the Appellant Ms. Minchu Mariam Punnoose, Advocate for the Respondent ORDER [ Order Per: M. V. Ravindran ] This appeal is filed by the Revenue against Order-in-Appeal No. TTD-EXCUS-000-APP-056-16-17 dated 23.03.2017. 2. Heard both sides and perused the records. 3. Brief facts of the case are that the appellant have been manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants have not complied with the same provisions and adopted cum amount value method without showing the 6% amount separately in the respective invoices and discharged their obligation accordingly for fiscals 2012-2013, 2013-2014 and 2014-2015. By not adopting the method of showing the 6% amount separately in the respective invoices issued for ENA and IS, it appears that the Basic value shown in those invoices qualify to be value under Section 4 of Central Excise Act, 1944 and felt that the question of any purported excess payment does not arise and on the contrary it appears to be converse and added that even assuming for a while that the appellant contention is true to the extent of purported excess payment, the doctrine of unjust enrichme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 8% of the value of exempted goods; once the assessee pays such amounts to the Government there is no need to further recovery for defaulted or belated payments referred under Rule 8(4) of Central Excise Rules, 2004 even if the amount is recovered from the customers; Larger Bench decision of the Tribunal in the case of Unison Metals Ltd., held that manufacturers shall not collect amounts falsely representing them as Central Excise duty and retain them thus, unjustly benefiting themselves is not applicable, hence reliance placed by the First Appellate Authority on ratio of the judgment of the Unison Metals Ltd., is incorrect; it is also his submission that reliance placed on various cases by the assessee before the First Appellate Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2007 (213) ELT 280], Benzy Tours Travels Pvt. Ltd., [2016 (43) STR 625]. It is her further submission that the amounts paid by the respondent herein but no duty paid and is an amount equivalent to percentage of value of exempted goods cannot be termed as a duty and the cess paid on that is also not to be considered as cess on duty. She would submit that the First Appellate Authority was correct in allowing the refunds. 7. I have carefully gone through the records and considered the submissions by both sides, the issue that arises for decision before me as under: i) Whether the reversal/payment of 6% amount can be considered as duty of excise; ii) Whether Education Cess/Secondary Higher Education Cess is liable to be paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as duty of excise is accepted for a while, then the department has to allow the said payment as CENVAT credit to the appellant as per Rule 3 of CENVAT Credit Rules 2004. The department should not take contrary views in respect of amount paid under Rule 6 CCR 2004 as excise duty for the purpose of collection Education Cesses and treating the same amount as not excise duty for the purpose of allowing CENVAT credit. Thus, the considering the said amount treating as excise duty is hypothetical and contradictory to Rule 2(e) of CER 2002. I feel that the contention made by the respondent is devoid any iota of rationality. Therefore, I hold that payment of 6% on the value of exempted goods under Rule 6 of CCR 2004 is not a duty of excise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not arise. Therefore, I hold that these Education Cesses are not liable to be paid on amounts paid under Rule 6 of CCR, 2004. 9. In my considered view, the undisputed fact is the amount paid by respondent being an amount and does not amount to duty, the provisions of Section 11B of the Central Excise Act, 1944, would not get attracted to such refund claims, and the bar of unjust enrichment will not apply, as the said provisions of Section 11B of Central Excise Act, will apply to refund is a duty. I find the First Appellate Authority was correct in coming to such a conclusion in paragraph No. 5.6 of the impugned order and I concur with the same. 10. As regards the question of applicability of unjust enrichment, I find that the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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