Customs, Excise and Gold Tribunal - Mumbai
Herdillia Chemicals Ltd. vs Commissioner Of Central Excise on 5 April, 2004
Equivalent citations: 2004(176)ELT324(TRI-MUMBAI)
ORDER
Archana Wadhwa, M (J)
1. After hearing both the sides, duly represented by Shri J.N. Pikle, Ld. Advocate, and Shri Arun Chopra, Ld. JDR., I find that as per facts on records the appellants are engaged in the manufacture of Phenol and Acetone. During the manufacture of the said products 'waste hydro carbon' arises which the appellants used captively as fuel. The said hydro carbon was being classified, under heading 27.10 and entitled to exemption under Notification No. 276/67 C.E. However, proceedings were initiated against them for classification of the product under Heading 38.23. Ultimately the said waste hydro carbon was held to be falling under Chapter 38 in which case also there was also exemption in terms of Notification No. 217/86.
2. When the above proceedings were going on against the appellant the Revenue was of the view that such waste hydro carbon captively used as fuel attracted duty and directed the appellant to deposit duty amount in question for the period 1.3.94 to 8.1.95. The said deposits were made by them on 12.1.95, 13.2.95 and 24.2.95. Subsequently their claim of exemption under Chapter 38 having been accepted by the Revenue, they filed a refund claim on 4.3.98 for an amount of Rs. 5,10,321/- deposited by the appellant subsequent to the use of the said waste.
3. They were issued a show cause notice on 23.7.98 proposing denial of refund claim on the point of time bar, culminating in the order passed by the Asst. Commissioner on 2.3.2000, vide which he rejected the refund claim on the point of limitation as well as on the point of unjust enrichment. Being aggrieved with the said order, the appellant filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) in the appeal dated 31.1.2001 set aside the same and held - "In view of the above, I have no hesitation in setting aside the impugned order and direct that the refund claim may be sanctioned in favour of the appellant". Instead of sanctioning refund claim as directed by the Commissioner (Appeals), the appellant was again issued a show cause notice. The Asst Commissioner again vide his impugned order dated 23.8.2001 rejected the refund claim on the ground of unjust enrichment by observing that the Commissioner (Appeals) order did not deal with the said aspect. While disposing of the refund claim, he observed as under:-
"I have gone through the case records of the case and findings given in the Commissioner (Appeals)'s order referred above. I find that the refund claim was rejected earlier on the grounds of time bar as well as for the reasons of assessee's failure to discharge their burden of unjust enrichment under Section 11B of the Central Excise Act, 1944. The Commissioner (Appeals) set aside the above Order-in-Original and directed that the refund claim may be sanctioned in favour of the assessee. The said order of Commissioner (Appeals) has also been accepted by the Commissioner of Central Excise, Mumbai VI on 27.3.2001 as intimated to this office vide Superintendent (Review), Central Excise, Mumbai VI's letter F.No. V(Trb. Cell) MISC-1/01/122 dated 10.4.2001. On perusal of Commissioner (Appeals)'s above order, I find that only time bar issue has been dealt with by citing case laws. However, the issue of unjust enrichment is not dealt with by the said order which was one of the reasons for rejection of their claim early as emphasized vide this office order-in-original No. R-287/99 dated 29.2.2000. The assessee has also not submitted any documentary evidences till date to establish that the incidence of duty has not been, passed on to any other person."
4. I find that the Commissioner (Appeals) vide his Order-in-Appeal dated 31.1.2001, set aside the earlier order of the Asst. Commissioner with consequential relief to the appellants. The only option available to the Revenue was either to accept Order of the Commissioner (Appeals) or, if they were aggrieved with the same, to file an appeal before the Tribunal. It was not open to the Asst. Commissioner to redecide the matter on the point of unjust enrichment which according to him was not considered by the Commissioner (Appeals). It is also recorded in the Order of Asst Commissioner that the Order of the Commissioner (Appeals) was accepted by the Commissioner of Central Excise, Bombay. If that was so, the only option available to the Revenue was to implement the said order instead of deciding on the refund claim for the second time on a different point. As such, I am of the view that second order passed by the Deputy Commissioner on the point of unjust enrichment is not sustainable for want of jurisdiction. Accordingly, the same is set aside and the appeal is allowed with consequential relief to the appellants. I make it clear that I have not expressed any opinion on the merits of the case as regards unjust enrichment though the appellants have agitated the same.
(Dictated & Pronounced in the open Court)