Custom, Excise & Service Tax Tribunal
M/S. Hindustan Sanitartware & Inds. Ltd vs C.C.E. Gurgaon on 5 August, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Appeal No. E/2099/2006-EX(DB)
[Arising out of Order-in-Appeal No. 120/GRM/RTK/2006 dated 31.03.2006 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Gurgaon].
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
Hon'ble Shri B. Ravichandran, Member (Technical)
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?
M/s. Hindustan Sanitartware & Inds. Ltd. .Appellants
Vs.
C.C.E. Gurgaon .Respondent
.
Appearance:
Shri R.K. Krishnan, Advocate for the Appellant Shri M. S. Negi, DR for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Hon'ble Shri B. Ravichandran, Member (Technical) Date of Hearing: 05.08.2015 FINAL ORDER NO. 52536/2015-EX(DB) Per Ashok Jindal:
The appellant is a manufacturer of sanitary ware. While manufacturing their final product the appellant is manufacturing Plaster of Paris which was cleared for home consumption on payment of duty and consumed captively as well as in manufacture of Plaster of Paris moulds were used in turn used for manufacture of their final product i.e. sanitary ware. Thus appellant claim exemption for such exemption under notification no. 221/86 dated 02.04.1986. The said exemption was denied on the grounds that as moulds are exempted from payment of duty in terms of notification no.221/86 dated 02.04.1986. Therefore, duty on manufacture of Plaster of Paris was confirmed but this Tribunal vide order no. 304/91 dated 01.04.1991 held that appellant is entitled to avail benefit of exemption under notification no. 217/86. In consequent to that appellant is not liable to pay duty. In consequent to the said order of this Tribunal the appellant filed a refund claim which was initially allowed to the appellant. Later on, a corrigendum was issued to the appellant that refund has been erroneously refunded to them. Being it is a case of unjust enrichment and as appellant has not passed the bar of unjust enrichment, therefore they are not entitled to refund claim. The matter was adjudicated. Refund claim was rejected which was affirmed by the Ld. Commissioner (A). Aggrieved from the said order appellant is before us.
2. The Ld. Counsel for the appellant submits that in this case the appellant has obtained the certificate from the Chartered Accountant affirming that duty paid on Plaster of Paris was under protest and same has not been included in the valuation of the final product. Therefore, they are entitled to claim the refund and they have passed the bar of unjust enrichment.
3. On the other hand, the Ld. AR oppose the contention of the Ld. Counsel and submits that issue has already been settled by the Honble Apex Court in the case of UOI Vs. Solar Pesticides-2000 (116) ELT 401 (SC) wherein it has been held that for captively consumed goods the bar of unjust enrichment is applicable. Therefore, impugned order is to be upheld.
4. Heard the parties. Considered the submission.
5. In this case it is not disputed by the appellant themselves that bar of unjust enrichment is applicable to the facts of this case. The contention taken by the Ld. Counsel for the appellant that the certificate issued by the Chartered Accountant says that duty has been paid under protest and same has been written off in the Profit and Loss account towards expenses of excise duty payment and the Chartered Accountant has further certified that the said duty paid have not been included in price calculation of the final product. As they were hopeful of getting favorable order and claiming the same as refund. The certificate issued by the Chartered Accountant is contrary to the fact that the appellant has written off the duty element as expenses towards excise duty and he is further certifying that appellant is being hopeful of getting the said refund claim. In fact, when appellant knew that they will get the refund claim in question they would have shown the amount receivable from the department. Instead of doing so the appellant has written off the amount of refund as expenditure in their Profit and Loss Account. Moreover, the appellant has not produced the price calculation of their final product. Therefore, we hold that appellant has failed to discharge their burden of passing the bar of unjust enrichment. Consequently, both the lower authorities has rightly rejected the refund claim. Therefore, we do not find any infirmity with the impugned order. Same is upheld.
6. Appeal filed by the appellant is dismissed.
0 (Dictated and pronounced in the open court) (B. Ravichandran) (Ashok Jindal) Member (Technical) Member (Judicial) Bhanu 2 E/2099/2006-EX(DB)