Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Of Customs And Central ... vs Novopan Industries Ltd. on 28 July, 2006
Equivalent citations: 2007(114)ECC167, 2007ECR167(TRI.-BANGALORE), 2007(213)ELT394(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. This Revenue appeal arises from Order-in-Appeal No. 11/2005 dated 24.6.2005 upholding the Order-in-Original No. 4/2003-CE dated 24.7.2003 wherein the Asst. Commissioner has held that the assessments were provisional and after the finalization, the assessee was entitled for refund, as claimed by them. The Tribunal by Final Order No. 1130 and 1131/2002 dated 22.8.2002 had remanded the matter to the Asst. Commissioner to examine the plea as to whether the assessments were provisional or not. The Asst. Commissioner after detailed examination of RT returns, pricelists and other documents, clearly gave a finding that the assessments during the period in question were all provisional. Therefore, the assessments which were subsequently finalized resulted in refund claims, which he upheld. The Revenue was aggrieved with the Asst. Commissioner's order and filed an appeal before the Commissioner (A). The Commissioner (A) re-examined the whole issue and found that the order of Asst. Commissioner was just and proper. He took the view that the provisions of unjust enrichment would not apply in cases where the assessments were provisional in terms of the Apex Court judgment rendered in the case of Mafatlal Industries Ltd. v. UOI and CCE, Mumbai-II v. Allied Photographics (India) Ltd. . The Revenue is aggrieved with this order and contends that the provisions of unjust enrichment would apply even in similar circumstances. They have filed a Miscellaneous Application producing all the copies of the order of finalization in the matter.
2. The learned JDR reiterates the grounds taken by the Revenue in the matter.
3. The learned Counsel submits that the fact of assessment being provisional is not being denied even in this appeal. As such the question of provisions of unjust enrichment would not apply as held by the above cited Supreme Court judgment. He also brings to our notice the judgment of this bench rendered in the case of Ampro Industries Pvt. Ltd. v. CCE, Hyderabad 2005 (TIOL) 731 (Cestat-Bang.) wherein this very question was gone into detail and the Tribunal after due consideration in Para 3 have held in terms of Apex Court judgment that the provisions of unjust enrichment would not be attracted. The para 3 of the findings recorded in the case of M/s. Ampro Industries Pvt. Ltd. is reproduced herein below.
3. On a careful consideration of the submissions made by both the sides, we notice that it is clear from the impugned order that the refund arose as a result of finalization of provisional assessment. It is very clear from the facts of the case that no part of duty was time barred as assessments were still provisional. The Commissioner (Appeals) in the impugned order has held that the refund is hit by provisions of unjust enrichment and the amounts are required to be credited to the Consumer Welfare Fund. On a careful consideration and examination of the entire facts of the case, it is very clear that the assessments were provisional as held by both the authorities and refund arose as a result of finalization. Therefore, the excess duty paid is required to be refunded and the amounts are not hit by provisions of unjust enrichment as held by the Supreme Court in the case of Mafatlal industries Ltd. (supra) and Allied Photographics (India) Ltd. (supra). The impugned order directing the amounts are required to be remitted to the Consumer Welfare Fund is not correct order and the same is set aside. The appeals are allowed with consequential relief.
He submits that the issue is foreclosed in assessee's favour and hence, the appeal should be rejected.
4. On a careful consideration, we notice that the Tribunal by Final Order No. 1130-1131/2002 dated 22.8.2002 had remanded the matter for denovo to the Asst. Commissioner to examine the issue as to whether the assessments were provisional or not. The Asst. Commissioner after detailed scrutiny of all the documents clearly came to the conclusion that the assessments were provisional and therefore, the provisions of unjust enrichment would not apply and granted the refund. The Revenue was aggrieved with this order and filed an appeal before the Commissioner (A). The Commissioner (A) in her Order-in-Appeal No. 11/2005 (H-I) (D) CE dated 24.6.2005 upheld the Asst. Commissioner's order. The Revenue contends that the provisions of unjust enrichment would apply to the facts of the case. We do not agree with the grounds taken up by the Revenue in the matter. The Apex Court has already in the cited judgment clearly held that the provisions of unjust enrichment would not arise where the assessments were provisional. The present period is prior to the amendment brought to Rule 9B of CE Rules. The Tribunal in the case of M/s. Ampro Industries (supra) has applied the ratio of the Apex Court judgment in a similar circumstance and has allowed the appeal of the assessee. We do not find any merit in this appeal and the same is rejected.
(Pronounced and dictated in open Court)