Custom, Excise & Service Tax Tribunal
Commissioner Of Central ... vs Ampro Industries Pvt Ltd on 25 July, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order . 21194 / 2014 Appeal(s) Involved: E/1504/2011-SM [Arising out of OIA No.01-2011 dated 17/01/2011 passed by CC,CE&ST(Appeals-III), Hyderabad ] Commissioner of Central Excise,Customs And Service Tax HYDERABAD-III NULL OPP LB STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Appellant(s) Versus AMPRO INDUSTRIES PVT LTD PLOT NO.36, PHASE I, PAIGAH COLONY, S.P.ROAD, SECUNDERABAD. Respondent(s)
Appearance:
Shri R. Gurunathan, Addl. Commissioner(AR) For the appellant Shri PVB Charry, Advocate For the respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Date of Hearing: 25/07/2014 Date of Decision: 25/07/2014 Order Per : B.S.V.MURTHY The synopsis submitted by the learned counsel for the respondent brings out the case of the respondent and therefore the same is reproduced below:-
a. Amount in dispute : Rs.5,17,278/-
b. Period of dispute : 12/1983 to 5/1984
c. The assessments were provisional u/r 9B : w.e.f 25/04/1980.
d. Amount deposited when the : Rs.5 lakhs on 20/12/1983
assessments were provisional/ Rs.5 lakhs on 31/05/1984
BGs executed Rs.15 lakhs Bank Guarantee executed on
30/08/1982. These amounts are in deposit when
Assessments are provisional under Rule 9B of
Central Excise Rules.
e. Assessments were finalized on 21/1/1984 : The amount of Rs.5,17,278/- forms part of finalization of assessments and became refundable.
f. The present appeal filed by the Revenue is on the ground that bar of unjust enrichment is applicable even to cases prior to insertion made to sub-rule 5 of Rule 9B of Central Excise Rules, 1944 vide Notification No.45/99-CE(NT) dt. 25/06/1999.
g. There was no legal provision on bar of unjust enrichment prior to 25/06/1999. Therefore, even otherwise, even if the issue is unduly stretched the bar does not apply. In this regard, the following decisions are respectfully referred to:
CCE, Chennai Vs. TVS Suzuki Ltd. [2003(156) ELT 161 (SC)] Refund Unjust enrichment Provisional assessment Provisions of sub-rule (5) of Rule 9B of erstwhile Central Excise Rules, 1994 not retrospective in operation Merely because the departmental authorities took a long time to process the application for refund, the right of the appellant does not get defeated by the subsequent amendment made in Rule 9B(5) ibid (Para 5) CCE, Mumbai-II Vs. Allied Photographics India Ltd. [2004(166) ELT 3 (SC)] Refund Unjust enrichment Protest Refund of duty paid under protest after final assessments attracts bar of unjust enrichment whereas bar of unjust enrichment not applicable to refund consequent upon finalization of provisional assessment under Rule 9B of erstwhile Central Excise Rules, 1944 (nor Rule 7 of Central Excise Rules, 2002) Distinction between duty paid under protest and duty paid provisionally under Rule 9B ibid Section 11B of Central Excise Act, 1944 deals with claim for refund whereas Rule 9B ibid deals with making of refund, in which case assessee not required to comply Section 11B ibid.
h. It is further submitted that the subject disputed amount is also in dispute by the Revenue before Honble Andhra Pradesh High Court in CEA No.3/2010. This appeal is filed against the very final order No.631/09 dt. 29/04/2009 by which this amount had become refundable. There is no stay in the Honble High Court. Therefore this refund is grantable on merits in accordance with the final order dt. 29/.04/2009 passed by the Honble Tribunal.
2. The learned AR submitted that the decision in the case of TVS Suzuki Ltd (supra) would not be applicable to the present case in view of the fact that in the case of Sahakari Khand Udyog Mandal Ltd. Vs. CCE&Cus. [2005(181) ELT 328 (SC)], Honble Supreme Court took the view that the question of unjust enrichment has to be examined in all cases. Further he also submits that in the case of Mafatlal Industries Ltd. [1997(89) ELT 247 (SC)] relied upon by the Revenue, Honble Supreme Court had observed that where the refund is not arising as a result of finalization of provisional assessment but is a result of dispute getting into litigation and ultimately getting decided in favour of the appellant, the refund has to be examined under Section 11B. In this case, I find that the finalization of assessment resulted in differential duty demand of more than Rs.30 lakhs and appellants had to deposit some amounts out of this amount subsequently and finally the matter got decided in their favour. Therefore it cannot be said that the refund claim is arising as a result of Rule 9B(5) of Central Excise Rules. According to Rule 9B(5), refund has to be sanctioned suo motu. In this case that has not been done by the original authority since finalization of provisional assessment resulted in demand for differential duty. In fact the matter has been travelling up and down and a detailed chronological statement was submitted by the learned counsel before us and I consider that the chronological statement is relevant for better appreciation of the case and therefore the same is reproduced below:-
3. Since in my opinion, the refund claim has to be considered under Section 11B and not under Rule 9B and on going through the records, I find that both the lower authorities have not considered the question of unjust enrichment at all. The original adjudicating authority simply brushed aside the unjust enrichment aspect and relied upon the decision of the Honble Supreme court in the case of Allied Photographics India Ltd. but did not record specific observation as to whether the refund claim of the appellants is to be disallowed on the ground of unjust enrichment or not. Therefore the matter requires very detailed consideration. Since the matter is being remanded for detailed consideration I do not see any harm in keeping all the issues open so that the appellants can contest the issue on all grounds which they would like to canvass and get a well reasoned order. Accordingly the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh adjudication after observing principles of natural justice.
(Operative portion of the order pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER Raja 5