Custom, Excise & Service Tax Tribunal
Indoswe Engineers Pvt. Ltd vs Commissioner Of Central Excise, Pune I on 30 January, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI. APPEAL NO. E/1137/07-Mum (Arising out of Order-in-appeal No.P-I/18/2007 dated 15.2.2007 passed by Commissioner of Central Excise (Appeals), Pune) For approval and signature: Shri M.V.Ravindran, Honble Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : authorities? ====================================================== Indoswe Engineers Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Pune I Respondent Appearance: Shri L.B.Attar Advocate For Appellant Shri. P.K.Katiyar SDR For Respondent CORAM: Shri M.V.Ravindran, Honble Member (Judicial) : Date of Hearing : 30.1.2008 Date of Decision : 30.1.2008 O R D E R NO. Per : Shri M.V.Ravindran, Member (Judicial) :
This appeal is filed against order-in-appeal no. P-I/18/2007 dated 15.2.2007.
Heard both sides and perused records.
3. The issue involved in this case is rejection of refund claim of an amount of Rs.2,66,579/- under provisions of Sec.11B of the Central Excise Act, 1944. The appellant herein had dispute going on with the revenue as regards the benefit of the Notification. The said dispute was resolved in favour of the appellant. During the pendency of the dispute the appellant had paid this amount on the direction of the revenue vide TR6 challan but under protest. Having succeeded in their appeal before the Tribunal the appellant filed a refund claim. The Commissioner (Appeals) while upholding the adjudicating authoritys order, which sanctioned the refund claim, but transferred the amount to consumer welfare fund held as under :
6. In the present appeal I find that the Adjudicating Authority has probe into the matter of unjust enrichment. The appellants have not put forth any evidence to prove that the incidence of duty has not been passed on. Merely because the duty was paid as pre-deposit or was paid under protest does not make the doctrine of unjust enrichment inapplicable. The adjudicating authority has relied upon the Apex Courts decision in the case of M/s Sahakari Khank Udyog Ltd. 2005 (181) ELT 3 (SC) which is squarely applicable to the present case. In find that as per the provisions of 11B it is for the appellants to prove that the burden of duty element has not been passed on the ultimate customer the appellants have not produced evidence regarding non-passing of duty incidence to the ultimate customers. Further, the ratio of judgments in the above mentioned cases are not applicable in the case of appellants, as the adjudicating authority has rightly countered the same. I agree with the findings of the adjudicating authority. Hence the appeal is liable for rejection.
4. Ld. counsel appearing on behalf of the appellant submits that the issue in this case is squarely covered by the judgment of the Honble High Court of Judicature at Bombay in the case of Suvidhe Ltd. vs. UOI 1996 (82) ELT 177 (Bom.) and also by the judgment of the Honble High Court of Punjab and Haryana in the case of CCE, chandigarh-I vs. Modi Oil & General Mills 2007 (210) ELT 342 (P&H).
5. Ld. SDR, on the other hand, contended that any refund claim filed by the appellant would have to pass the test of unjust enrichment as provided under Sec.11B. It is his submission that this proposition of law is well settled by the Apex Court in the case of M/s Sahakari Khand Udyog Ltd. 2005 (181) ELT 328 (SC). It is his submission that in this case the appellant had debited the amount in the profit and loss account as an expenditure and hence they have recovered it from the customers indirectly.
6. The undisputed fact in this case is that the appellant had succeeded in their claim of exemption before the Tribunal and revenue has not filed any appeal against the said order. It is also undisputed that the appellant had deposited duty during the pendency of the proceedings before various forums. It is also undisputed that the amount had been deposited by the appellant under protest. All these facts only indicate, that the appellant, right from the beginning disputed the liability of the duty. I find that the provisions of Sec.11B of Central Excise Act, 1944 are not made applicable to such deposits since these deposits are in the form of pre-deposit, for availing, the right to appeal. Honble High Court of Bombay in the case of Suvidhe Ltd (Supra) held as under :
3. In respect of such a deposit the doctrine of unjust enrichment will be inapplicable. In the circumstances , the petition succeeds. The impugned show cause notice, which annexed at Exhibit-F to the petition, is quashed and the respondents are directed to forthwith refund the aforesaid amount of Rs.14,07,410/- alongwith interest thereon at the rate of 15% p.a. from the date of the order of the Appellate Tribunal i.e. from 30th November, 1993 till payment. Further an identical view had been taken by the Honble High Court of Punjab and Haryana in the case of Modi Oil & General Mills (supra) wherein it was held as under
3. We have heard learned counsel for the Revenue and find that no question of law would arise warranting acceptance of prayer of the Revenue to make a reference to this Court under Section 35G of the Act. The question whether the incidence of duty has been passed on to the buyer is necessarily a question of fact. The Commissioner (Appeals) as well as CEGAT in their respective orders dated 24-10-2001 and 16-4-2002 have recorded a categoric finding of fact that the incidence of duty could not be transferred to the buyer after the date of clearance as the duty had been paid on a subsequent date. This has been held to be sufficient to replace the presumption raised under Section 12B of the Act. Therefore, we find that no question of law warranting admission of this matter would arise and accordingly the application filed by the Revenue is dismissed. As against these, the reliance placed by the ld. SDR on the judgment of the Apex Court in the case of M/s Sahakari Khank Udyog Ltd. (supra) requires to the addressed. I find that in the case of M/s Sahakari Khank Udyog Ltd.(Supra), Honble Supreme Court was dealing with a case where the rebate on the production was considered and in para 49 it was held that All the authorities below have expressly recorded a finding that the appellant-Mandal has recovered the amount from consumers and as such excise duty is passed on to consumers/customers. This would indicate that the facts in that case were undisputed as regards the recovery of the amount ( for which refund claim was sought) by the petitioner therein. In the current case it is undisputed that the amount has been paid as a deposit, that also subsequent to the clearance made by appellant. In such situation, I am convinced that the judgements of the Honble Punjab & Haryana High Court and the Honble High Court of Bombay will directly apply and the impugned order holding otherwise is liable to be set aside and I do so. The appeal is allowed with consequential relief if any.
(Pronounced and dictated in court) (M.V.Ravindran ) Member (Judicial) .ts. / 2011370730012008MM