Custom, Excise & Service Tax Tribunal
Total Oil India Private Limited vs Commissioner, Cgst & Central Excise ... on 30 November, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. IV
Excise Appeal No. 50305 of 2021
(Arising out of Order-in-Original No. JOD-EXCUS-000-COM-0017-20-21 dated
05.08.2020 passed by the Commissioner of Central Goods and Service Tax &
Central Excise, Jodhpur)
M/s Total Oil India Private Limited Appellant
Singhari, Rohat, Distt. Pali,
Rajasthan - 306 421
VERSUS
Commissioner of Central Excise, Jaipur-II Respondent
AND Excise Appeal No. 50554 of 2022 (Arising out of Order-in-Appeal No. 182(CRM)CE/JDR/2021 dated 11.08.2021 passed by the Commissioner (Appeals), Central Excise & CGST, Jodhpur) M/s Total Energies Marketing India Pvt. Ltd. Appellant (Formerly known as Total Oil India Pvt. Ltd.) Rohat Jalore Road, Rohat, Distt.
Pali - 306421 (Rajasthan) VERSUS Commissioner (Appeals), Central Excise & Respondent CGST, Jodhpur APPEARANCE:
Shri Manoj Chauhan, Chartered Accountant for the Appellant Shri Rakesh Agarwal, Authorized Representative for the Respondent CORAM :
HON'BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL) HON'BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Date of Hearing: 24.08.2023 Date of Decision: 30.11.2023 FINAL ORDER NOs. 51572-51573/2023 HEMAMBIKA R. PRIYA The present two appeals have been filed by M/s Total Oil India Pvt. Ltd. and M/s Total Energies Marketing India Pvt. Ltd. 2 (hereinafter referred to as the appellant 1 and 2 respectively) to assail two orders viz., Order-in-Original No. JOD-EXCUS-000-COM- 0017-20-21 dated 05.08.2020 wherein Rs 4,41,29,475/- (for the period Sept 2012- Nov 2012) of CENVAT credit was ordered to recovered, along with interest and penalty of Rs. 15,00,000/- was imposed on appellant 1 vide the Order-in-Appeal No. 182(CRM)CE/JDR/2021 dated 11.08.2021, wherein the appellant 2 the Commissioner (Appeals) remanded the matter back to the original adjudicating authority for re-adjudication.
2. The brief facts of the two appeals before us are that the appellant is engaged in the manufacture of Bitumen Emulsion and preparation of Polymer Modified Bitumen (PMB) falling under Chapter 27 of the Central Excise Tariff Act, 1985. The records of the appellant were scrutinised by Anti Evasion Branch of Central Excise, Jaipur-II Commissionerate. During the investigation, it was alleged that the appellant has availed excess Cenvat credit as per the provisions of Rule 6 of Cenvat Credit Rules, 2004. The appellant reversed the said credit amounting to Rs. 2,67,06,656/- under protest. Subsequently, the appellants were issued show cause notice dated 01.10.2013 demanding reversal of credit of Rs. 7,14,73,212/- under Rule 6 of CCR, 2004 for the period September 2012 to June 2013. The demand raised by the said show cause notice was confirmed vide order-in-original dated 09.10.2014 against which the appellant filed an appeal before the Tribunal. The said Appeal No. E/50367/2015 was disposed vide order dated 27.10.2017, vide which the Tribunal remanded the matter for the purpose of verification of figures. On merits, the Tribunal held that 3 the appellant had properly availed Cenvat credit. Pursuant to the remand proceedings, the demand of Cenvat credit was revised to Rs. 4,41,29,475/- along with penalty of Rs. 15,00,000/- and interest of Rs. 27,02,518/- totalling to Rs. 42,02,518/- for period September 2012 to June 2013 was confirmed vide the Order-in- Original dated 05.08.2020. The appellant reversed/deposited amount of Rs. 5,52,79,359/-. Thereafter, the appellant filed a refund claim of Rs. 1,11,49,884/- (5,52,79,359 - 4,41,29,475) on 15.09.2020. The said amount was included in amount paid by the appellant under protest. The said refund claim was allowed by the adjudicating authority vide order dated 30.12.2020, though an amount of Rs. 42,02,518/- was appropriated on account of interest and penalty payable pursuant to the order dated 05.08.2020. The refund for the balance amount of Rs. 69,47,336/- was granted.
3. The refund order dated 30.12.2020 was challenged by department before Commissioner (Appeals), on the ground that adjudicating authority had not verified whether the refund was clear from principle of unjust enrichment. However, the Commissioner (Appeals) vide order-in-appeal dated 01.08.2021 allowed the appeal by way of remand to verify whether the said principle has been satisfied by the appellant. The present appeal No. E/50554/2022 is filed by the appellant against the order passed by the Commissioner (Appeals) dated 01.08.2021 allowing the appeal filed by the department against order-in-original dated 30.12.2020.
4. We will now take up the first appeal against Order-in-Original No. JOD-EXCUS-000-COM-0017-20-21 dated 05.08.2020 wherein 4 Rs 4,41,29,475/- (for the period Sept 2012- Nov 2012) of CENVAT credit was ordered to recovered, along with interest and penalty of Rs. 15,00,000/- was imposed.
5. The Learned Counsel submitted that the Hon'ble Tribunal had only remanded matter to verify whether duty has been paid on PMB and not remanded to verify that the appellant had availed lesser Cenvat credit than duty paid on exempted product and hence order in original is beyond the direction of Tribunal. Learned counsel further submitted that Tribunal in para 6 relying on the judgment of Creative Enterprises - 2009 (235) ELT 755 (Guj.) which was upheld by the Hon'ble Supreme Court in Creative Enterprises - 2009 (243) ELT A120 (SC) has held that for the period September 2012 to November 2012 (inadvertently mentioned November 2013), it is on record that the appellant has paid the duty on the product PMB in spite of the fact that the Apex has held that it has not been manufactured. It is settled position of law that once duty has been paid it is to be considered as reversal of Cenvat credit availed. Tribunal had merely reproduced the relevant extract of Creative Enterprises (supra) and Tribunal has nowhere stated that Commissioner has to verify that the appellant had availed lesser Cenvat credit than duty paid on exempted product. Therefore, it is evident from the above that Tribunal has merely remanded the matter to the adjudicating authority only to verify whether the appellant had paid duty on the PMB goods removed during the period September 2012 - November 2012. The Commissioner's order that the duty paid was higher than the credit taken and there is no accumulation of credit due to is beyond the 5 direction of Tribunal since the Tribunal had not remanded the matter to verify whether the appellant had availed lesser Cenvat credit than the duty paid on the exempted product. Therefore, it is evident that findings of the Commissioner in de novo proceedings are outside the directions of the Tribunal with which the Commissioner has bound to follow. The learned Counsel relied on the following judgements:
i. M/s Vandana Enterprises -2020-TIOL-1238-CESTAT-All, ii. M/s Engineering Professional Co. Pvt. Ltd. Vs. the Deputy Commissioner of Income Tax Circle 1(1)(1)of Gujarat High Court vide Appeal No. R/SPECIAL CIVIL APPLICATION NO. 1997 of 2019.
6. The learned Counsel also submitted that the Cenvat credit denied to the appellant during the period September 2012 to November 2012 as under:
Sr. Credit pertaining to Amount of credit No. disallowed 1. Inputs 52,57,688/- 2. Input Services 1,11,99,084* 3. Total 1,64,56,772
*M/s TVBIPL had availed credit of Rs. 1,31,01,660/- on input services based on challan prepared by ISD and proportionate denial of credit is Rs. 1,11,99,084) He contended that the Cenvat credit amounting to Rs. 52,57,688/- pertained to the input procured during the period September 2012
- November 2012. He also submitted that in the present case, the appellant had paid duty of Rs. 60,89,453/- during the same period whereas the credit denied to the appellant on inputs is Rs. 52,57,668/- as indicated in the table under:
6
Sr. Sept. Cenvat credit denied on Total credit Duty No. 2012 taken paid to Nov.
2012 Bitumen Furnance Gilsosnite
Oil
1 TOTAL 49,83,844 2,12,085 61,759 52,57,688 60,89,453
6.1 The learned Counsel further submitted that the appellant had paid duty by utilizing the credit, as was evident from the following table:-
Sr. Month Duty paid through as per ER-1 returns (refer No. point no. 4 & 5 of respective ER-1 returns) CENVAT PLA TOTAL
1. September 12 18,07,710/- 0 18,07,710/-
2. October 12 27,16,989/- 0 27,16,989/-
3. November 12 15,64,754/- 0 15,64,754/-
4. Total 60,89,453/- 0 60,89,453/-
6.2 The Cenvat credit amounting to Rs. 1,31,01,660/- availed in month of September 2012 pertained to service tax paid on input service. He submitted that during September 2012, M/s TVBIPL had availed credit of Rs. 1,31,01,660/- on input services based on challan prepared by ISD i.e. M/s TVBIPL vide 9 ISD distribution challans. During the period April 08 to March 11, M/s TVBIPL was only engaged in manufacturing of Bitumen Emulsion and had cleared these goods by preparing excise invoice and on payment of duty, as is evident from ER-I returns filed for the said period. The Ld Counsel contended that the credit is required to be reversed only when the said credit is used in processing of PMB. In this case, the input services have not been utilized in the manufacture of PMB cleared during September 12 to June 2013 since they were input services received during the period April 2008 to March 2011.
Therefore, he submitted that credit of Rs. 1,11,99,084/- on input 7 services is not required to be reversed. These input services were used in manufacture of Bitumen Emulsion on which duty is paid by the appellant.
6.3. In view of the above submission, the learned Counsel contended that eligibility of the credit shall be determined as on the date when the services were received and the fact that it is distributed subsequently is not relevant. Thus, the credit availed on input services during month of September 2012 is to be excluded for the purpose of computing the amount of credit to be reversed. He relied on the judgment of M/s Surya Food and Agro Ltd. - 2020-TIOL-1004-CESTAT-ALL.wherein it was held that when Cenvat credit is availed and the same is utilized for payment of central excise duty on the goods which were not attracting excise duty, under such circumstances such Cenvat credit cannot be recovered. He further contended that the department had accepted the payment of excise duty and had not disputed the same during the period September 2012 to November 2012. Therefore, the appellant had appropriately discharged the duty and hence department at the later stage cannot take stand that the appellant is required to reverse the credit since the product was exempted. The ld counsel relied on the judgement of M/s R.K. Packaging - 2019 (3) TMI 1500 - CESTAT MUMBAI wherein it was held that the issue is no more res integra and stand decided in the case of The Commissioner of Central Excise, Pune Vs. Ajinkya Enterprises - 2012 (7) TMI 141 - BOMBAY HIGH COURT), wherein it was held that once the duty on final products has been accepted by the department, Cenvat credit availed need 8 not be reversed even if the activity does not amount to manufacture.
7. The learned Counsel submitted that no interest was payable by the appellant as the appellant had not utilised the credit. He relied on Rule 14 of the Cenvat Credit Rules, 2004 after 1.04.2012 which reads as under:
―Recovery of CENVAT credit wrongly taken or erroneously refunded. -- Where the CENVAT credit has been taken and utilized wrongly or has been erroneously refunded, the same along with interest shall be recovered from the manufacturer or the provider of output service and the provisions of section 11A of the Excise Act or section 73 and 75 of the Finance Act shall apply mutatis mutandis for effecting such recoveries‖ He contended that the words ‗taken and utilized' were substituted for words ‗taken or utilized'. Thus, for levy of interest, both the conditions that the ‗credit shall be taken' and ‗credit shall be utilized' is required to be satisfied. In this case, the appellant had not utilized the credit in as much as the closing balance was always greater than the amount of Cenvat credit to be reversed. As regards the penalty, the learned Counsel submitted that the penalty is leviable when the person takes or utilized the credit wrongly or in contravention of any of the provisions of this rule. In this case, the appellant had neither taken the credit wrongly or utilized the credit wrongly. The Cenvat credit was legitimately available to the appellant. The credit was also not utilized for any other purpose not permitted under Rule 3(4) of Cenvat Credit Rules. In view of this, he submitted that Rule 15(1) is not liable to be attracted.9
8. The Learned Authorised Representative reiterated the findings of the Commissioner in the impugned order. He contended that the appellant had availed higher CENVAT credit as compared to the duty paid in the corresponding period. He submitted that the appellant cannot be allowed to kill it credit for a product which is not excisable and does not amount to manufacture. Therefore, the Commissioner was correct in confirming the demand of Rs. 1,64,56,772/- for the period September 2012 to November 2012. As regards the contention that credit availed by them in July 2013 for the month of October, 2012 of M/s TVBIPL, he submitted that the same is not verified.
9. We now take up the arguments in respect of the Appeal E/50554/2022 against the order in appeal no.
182/(CRM)CE/JDR/2021 dated 11.8.2021 wherein the Commissioner (Appeals) remanded the matter to the adjudicating authority.
10. The learned counsel submitted that the review order as well as the impugned order was beyond the scope of the show cause notice. The counsel contended that the appellants were issued show cause notice dated 02.12.2020 after the filing of the refund claim, which had been issued only on the grounds as to why the amount of penalty and interest confirmed vide order dated 05.08.2020 should not be appropriated against the refund claim. There is no allegation on the aspect of the principle of unjust enrichment. Accordingly, the learned counsel contended that the review order as well as order-in-appeal is beyond the scope of show 10 cause notice and is liable to be set aside on this ground alone. He relied upon following judgements:
(i) Brindavan Beverages (P) Ltd. - 2007 (213) ELT 487 (SC).
(ii) Precision Rubber Industries (P) Ltd. - 2016 (334) ELT 577 (SC).
(iii) Reliance Ports and Terminals Ltd. - 2016 (334) ELT 630 (Guj.).
11. The learned Counsel contended that the appellant vide their letter dated 31.07.2013, had clearly indicated that said amount had been paid under protest after utilising Cenvat credit available in its Cenvat register. The refund amount claimed by the appellant is a part of the aforesaid reversal entry. Therefore, the learned counsel submitted that the refund claim by appellant is of an amount paid under protest during investigation was from the appellant's pocket. The learned counsel relied on following judgements wherein it is held that payment under investigation and under protest do not attract the principles of unjust enrichment.
(i) Eveready Industries India Ltd. - 2017 (357) ELT 11 (All.)
(ii) M/s Pricol Ltd. - 2015 (3) TMI 735 - Madras High Court.
(iii) M/s Universal Speciality Chemicals Pvt. Ltd. -
2015 (1) TMI 127-CESTAT Mumbai.
12. The learned Counsel further submitted that the appellant had accounted the payment made under protest under the head ―other current asset‖ in Schedule-14 of the Balance Sheet, which 11 substantiates the fact that the appellant had not recovered this amount from any other person. He relied on following judgements wherein it is held that amount deposited with the department if shown in balance sheet as ―receivable‖ then principle of unjust enrichment is not applicable.
(i) Andhra Pradesh Granite (Midwest) Private Limited - 2020 (3) TMI 370-CESTAT-Hyderabad.
(ii) M/s BMW India Private Limited - 2021 (3) TMI 214 - CESTAT-Chennai.
(iii) M/s Ceat Limited - 2020 (10) TMI 471 - CESTAT-
Mumbai.
(iv) Ericsson India Pvt. Ltd. - 2016 (332) ELT 697 (Del.).
(v) Savita Oil Technologies Ltd. - 2017 (358) ELT 331 (Tri.-Mumbai).
(vi) Shree Krishna Nylon Pvt. Ltd. - 2015 (327) ELT 626 (Tri.-Mumbai)
(vii) Larsen & Toubro Ltd. - 2015 (330) ELT 749 (Tri.-
Mumbai)
13. The learned Counsel went on to submit that the Commissioner (Appeals) had not given any finding to their submissions made in writing or hearing. The learned counsel further contended that the Commissioner (Appeals) had remanded the order, whereas the Section 35A of the Central Excise Act, 1944 had been amended with effect from 11.07.2001 whereby the Commissioner (Appeals) is power to remand case had been withdrawn. In this contest, the counsel relied on the Supreme Court judgment in the case of M/s MIL India - 2007 (210) ELT 12 188 (SC) and the same has also been confirmed by the Board's Circular dated 18.02.2010. In view of the above, he submitted that the order passed by the Commissioner (Appeals) is beyond Section 35A of the Central Excise Act, 1944 and thus is liable to be set aside on the said ground alone.
14. The learned Authorised Representative reiterated the findings of Commissioner (Appeals). He submitted that the Commissioner (Appeals) had no option other than to remand the case in view of the peculiar facts and circumstances of the instant case. The learned Authorised Representative drew attention to use of the words ―incidence of such duty........‖ and submitted that the said words meant the burden of duty. Section 27(1) of the Act talks of the incidence of duty being passed on and not the duty as such being passed on to another person. He submitted that the expression ―incidence of such duty‖ in relation to it being passed on to another person would take it within its ambit not only the passing of the duty directly to another person but also cases where the incidence is passed on indirectly. This would be a case where the duty paid on raw material is added to the price of the finished goods which are sold in which case the burden or the incidence of the duty on the raw material would stand passed on to the purchaser of the finished product. It would follow from the above that when the whole or part of the duty which is incurred on the import of the raw material is passed on to another person then an application for refund of such duty would not be allowed under Section 27(1) of the Act. The learned Authorised Representative submitted that in all three categories of cases, it is the assessee 13 who has to prove the fundamental factor that the incidence of tax is not ―passed on‖ to the consumer or third party and that he suffered a loss or injury. The learned Authorised Representative went on to submit that the presumption is that the tax payer has passed on the liability to the consumer (or third party), though it is open to him to rebut the said presumption. The matter is exclusively within the knowledge of the tax payer, whether the price of the goods included the ‗duty' element also and/or also as to whether he has passed on the liability since he is in possession of all relevant details. The department is not be in a position to have an in depth analysis in the innumerable cases to ascertain and find out whether the tax payer has passed on the liability. The matter being within the exclusive knowledge of the tax payer, the burden of proving that the liability has not been passed on squarely lies on him.
15. The learned Authorised Representative contended that Section 35A(3) of the Act, as amended, confers powers on the Commissioner (Appeals) to annul the order-in-original and also to pass just and proper order. There may be circumstances where only just and proper order could be to remand the matter for fresh adjudication. Hence, the learned AR contended that the power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944.
16. We have heard the rival contentions. We will now consider the arguments in each appeal individually.
17. In order to appreciate the arguments with regard to the first appeal, we need to go through the order of remand of the Tribunal. The relevant para is reproduced hereinafter: 14
―8. After hearing the rival submissions, it appears that the appellant is in a position to satisfy the Deputy Commissioner on the requirements of Rule 10(3). When it is so, then we set aside the impugned order and remand the matter to the adjudicating authority to decide the issue denovo, but by providing an opportunity of hearing to the appellant in accordance with law.
9. The third issue of the present appeal is pertaining to the demand raised by the revenue by taking the view that since the product PMB is not a manufactured product, no setback credit would be admissible on the inputs and input services used in the production of such goods. It is on record that the appellant has already reversed an amount equal to 6% of the value of PMB as stipulated under Rule 6(3). On perusal of Rule 6(3) it is either the requirement of paying and amount @6% of the value of exempted goods has been stipulated to take care of the situation when common inputs are used in the manufacture of dutiable as well as exempted goods. In the present case, there is a distinction in as much as the Apex Court has held that the product PMB does not amount to manufacture. But keeping in mind the fact that the stipulation in Rule 6(3) is a mechanism to expunge a part of the credit which is attributable to the goods which do not suffer duty, the adjudicating authority's view that the entire credit taken should be expunged is perverse. It is also seen that an Explanation-1 has been inserted in Rule 6 to the effect that for the purpose of this rule, ‗exempted goods' shall include non-excisable goods cleared from the factory for a consideration.
10. By following the requirement of Rule 6(3) the appellant has already paid an amount @6% of price of PMB which in our view suffices. We are of the view that there is no justification for demanding reversal of the entire credit taken. Since the matter is being remanded, the adjudicating authority is also directed to verify the amount actually reversed and to requantify the overall demand, if any. He will also decide the issue of penalty accordingly.‖
18. From the above, it is clear that the Tribunal had remanded the matter for the limited purpose of satisfying the Deputy Commissioner on the requirements of Rule 10(3) and as also to quantify the demand after considering the appellant's payment of an amount @ 6% of the price of PMB. In this context, we note that the adjudicating authority has not given the benefit of the duty paid at the time of removal of PMB amounting to Rs.60,89,453/-. We note that there is no dispute that the appellant had paid the duty of Rs.60,89,453/- which has not been objected to by the Department 15 during the relevant time. Therefore, the appellant cannot be denied the adjustment of this duty paid against the amount liable to be reversed. It has been submitted before us that the credit availed during the period September - 2012 to November - 2012 is less than the duty paid. During the said period, the appellant had availed credit on inputs amounting to Rs.52,57,688/- and the remaining credit of Rs.1,31,01,660/- had been availed on ISD invoices issued by the head office of the appellant in May 2011 for distributing the credit for the period October - 2008 to March - 2011. We find that the department has not disputed the payment of this duty at the relevant time and neither have they demanded the reversal of CENVAT credit. In view of the same, we hold that the Commissioner had erred in denying the adjustment of ₹60,89,453/- against the demand for the period September 2012 to November 2012.
19. As regards the penalty imposed on the appellant, we find that that the adjudicating authority has held that the appellant has not properly assessed their credit reversal, irrespective of mensrea, they are liable for penalty. We are unable to accept this finding of the adjudicating authority. We note that the appellant were regularly availing credit and paying duty on the final product, even after it was held that the said process did not amount to manufacture. The department did not raise any dispute or the fact that the appellant was choosing to pay the duty on a product, not exigible to excise duty. In such a scenario, it is not established that there was any intention of the appellant to evade duty or avail inadmissible credit. Therefore, no case has been made out by the 16 adjudicating authority for levying penalty on the appellant, the same is set aside.
20. We now take up the second appeal for consideration. We note that initially the show cause was issued for appropriation of the refund amount against the penalty and interest confirmed by order dated 05.08.2020. However, the Commissioner (Appeals) has remanded the matter back to the original authority to examine the claim from the point of view of unjust enrichment. As per the facts of this case we find that the appellant vide their letter dated 31.07.2013 had clearly indicated that the said amount had been paid after utilising CENVAT credit under protest. It is also brought to our notice that the amount so deposited is recorded under the head ―other current asset‖ in Schedule 14 of the Balance Sheet. This substantiates the contention of the appellant that they had not recovered this amount from the buyer of the product or any other person. We find that in several decisions, it has been held that the principal unjust enrichment does not apply to cases where duty has been paid to protest. In this regard to find that in the case Commissioner of Central Excise Vs. Pricol Ltd. [2015 (39) STR 190(Mad)], the High Court of Madras held as follows:
―The first question of law, which is raised, relates to the plea of unjust enrichment and much emphasis is laid on the decision of the Supreme Court in Mafatlal Industries case [1997 (89) E.L.T. 247 (S.C.)]. Relevant portion of the order passed by the Supreme Court in Mafatlal Industries case (supra) has been extracted in the grounds (b) and (c). There is no dispute with regard to the proposition of law as laid down by the Supreme Court. In the present case, as is evident from the records, it is not a case of refund of duty. It is a pre-deposit made under protest at the time of investigation, as has been recorded in the original proceedings itself. In this regard, it has to be noticed that it has been the consistent view taken by the Courts that any amount, that is deposited during the pendency of adjudication proceedings or 17 investigation is in the nature of deposit made under protest and, therefore, the principles of unjust enrichment does not apply. The above said view has been reiterated by the High Court of Bombay in Suvidhe Ltd. v. Union of India - 1996 (82) E.L.T. 177 (Bom.), and by the Gujarat High Court in Commissioner of Customs v. Mahalaxmi Exports - 2010 (258) E.L.T. 217 (Guj.), which has been followed in various cases in Summerking Electricals (P) Ltd. v. CEGAT - 1998 (102) E.L.T. 522 (All.), Parle International Ltd. v. Union of India - 2001 (127) E.L.T. 329 (Guj.) and Commissioner of Central Excise, Chennai v. Calcutta Chemical Company Ltd. -
2001 (133) E.L.T. 278 (Mad.) and the said view has also been maintained by the Supreme Court in Union of India v. Suvidhe Ltd. - 1997 (94) E.L.T. A159 (S.C.). There are also very many judgments of various Courts, which have also reiterated the same principles that in case any amount is deposited during the pendency of adjudication proceedings or investigation, the said amount would be in the nature of deposit under protest and, therefore, the principles of unjust enrichment would not apply. In view of the catena of decisions, available on this issue, this Court answers the first substantial question of law against the Revenue and in favour of the assessee.
21. In view of the above discussions, we hold that unjust enrichment does not apply to the refund claim in the impugned appeal. On this basis alone we set-aside the impugned order.
22. Consequent to the discussions above, we decide the appeals in the following manner:
i. We allow the adjustment of the duty Rs.60,89,453/-
against the demand for the period September 2012 to November 2012. The remaining demand is upheld.
ii. The penalty of Rs.15,00,000/- imposed on the appellant is set aside iii. Unjust enrichment will not apply to refund claim where duty was paid under protest. Hence the refund is allowed.
The order in original no. JOD-EXCUS-000-COM-0017-20-21 is modified to the extent indicated above. Accordingly, we partially 18 allow the Appeal No. 50305 of 2021. We set aside the Order in Appeal No. 182(CRM)CE/JDR/2021 dated 11.08.2021 and allow the Appeal No. 50554 of 2022.
(Pronounced in open Court on 30.11.2023) (Dr. Rachna Gupta) Member (Judicial) (Hemambika R. Priya) Member (Technical) RM