Custom, Excise & Service Tax Tribunal
Cce Pune Ii vs Eurotex Industries Ltd on 28 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/2738/06 Mum
(Arising out of Order-in-Appeal No. PII/BKS/141/2006 dated 28.04.2006 passed by the Commissioner of Central Excise (Appeals), Pune II)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Pune II
:
Appellant
Versus
Eurotex Industries Ltd.
Respondent
Appearance Shri D.D. Joshi, Supdt (A.R.) For appellants Shri T.C. Nair, Advocate For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 28.03.2014 Date of Decision : 28.03.2014 ORDER NO.
Per Ashok Jindal The Revenue is in appeal against the impugned order wherein the learned Commissioner (Appeals) held that in the facts and circumstances of the case, bar of unjust enrichment is not applicable.
2. Brief facts of the case are that the respondents are manufacture of cotton yarn and cleared the goods on payment of basic duty. During investigation, it was found that the respondent has not paid additional duty (TTA). Therefore, a show-cause notice was issued for the demand of duty after clearance of the goods. Adjudication took place. Thereafter, on various appellate stages, the respondents paid duty as confirmed by the adjudication order. The issue was settled by the Honble High Court of Gujarat in the case of Gujarat Insecticides Ltd. v. UOI 2004 (183) ELT 9 (Guj) in favour of the respondent that they are not required to pay the additional duty (TTA). Therefore, the amount paid by the respondent was to be refunded to the respondent. The adjudicating authority rejected their refund claim on account of bar of unjust enrichment. On appeal, the Commissioner (Appeals) held that as in this case the duty has been paid by the respondent during the litigation stage and after clearance of the goods therefore, bar of unjust enrichment is not applicable. Aggrieved by the order the Revenue is before me.
3. Heard both sides.
4. The learned A.R. appearing for the Revenue submits that as per the decision of the Honble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. vs. CCE 2005 (181) ELT 328 (S.C.) in case of refund, the bar of unjust enrichment is applicable on principle of equity. He also relies on the decisions in the case of Union of India vs. Solar Pesticide Pvt. Ltd. 2000 (116) ELT 401 (S.C.), CCE vs. Allied Photographics India Ltd. 2004 (166) ELT 3 (S.C.) and Pride Foramer vs. CC 2006 (200) ELT 259 (Tri. Mumbai). The learned A.R. also submits that as the respondent has shown the amount of duty as revenue expenditure therefore, the same has formed the part of cost of production and the incidence of duty has been passed on to the buyers.
5. On the other hand, the learned Counsel appearing on behalf of the respondent submits that in this case the goods have been cleared and thereafter duty was demanded from them which was paid during the period of litigation. There was no record that the respondents have recovered any amount of duty over and above of the invoices price from the buyer. It is further submitted that the respondents have shown the amount of additional duty paid as contingent liability. To support his contention that bar of unjust enrichment is not applicable, the respondeents have also produced a Cost Account certificate to ascertain the fact that they have not received on account of differential amount from the buyers. In these circumstances, he placed reliance on the decision of his Tribunal in the case of CCE Pune v. Poona Rolling Mills Ltd. 2007 (220) ELT 907 (Tri. Mum) which was affirmed by the Honble High Court of Bombay vide Order dated 17th June 2009 in Central Excise Appeal No. 33/2009. He also relies on the decisions of the Tribunal in the case of Krishna SSK Ltd. 2007 (220) ELT 192 (T) which was affirmed by the Honble Bombay High Court in Central Excise Appeal No. 30 of 2008 dated 6.8.2008 and the judgement of the Honble Gujarat High Court in the case of Gujarat Insecticides Ltd. vs. Union of India 2005 (183) ELT 9 (Guj.). Therefore, he submits that as in this case bar of unjust enrichment is not applicable therefore, impugned order is to be upheld.
6. Considered the submissions.
7. It is a case where duty has been demanded from the respondent after clearance of the goods. This fact is not in dispute. Further, the fact is that the respondent has not received any amount over and above the amount shown in the invoices at the time of clearance. These facts are also not in dispute. The additional duty has been paid by the respondent at various appellate stages. The Revenue has also not produced any evidence on record that the respondent has recovered any amount towards duty over and above invoices price from the buyers. Further the case law relied on by the learned A.R. in the case of Solar Pesticide Pvt. Ltd. (supra) is not relevant to the facts of the case in that case duty was required to be paid on captively consumed goods. Because duty paid on captively consumed goods automatically forms the part of cost of production. Here that is not the case. Further in the case of Allied Photographics India Ltd. relied on by the learned A.R., I find in that case the issue is of security deposit at the time of clearance of the imported goods. In that case also the duty was paid at the time of clearance of the import of the goods, the same formed the part of cost of production? All those cases relied on by the learned A.R. does not relevant to the facts of the case as in this case duty has been paid after clearance of the goods. Further in the case of Gujarat Insecticides Ltd. (supra) wherein the Honble Gujarat High Court held that the amount deposited under protest during the pendency of the appeal before various appellate stages. As no stay was granted, the bar of unjust enrichment is not applicable. In this case also apart from bar of unjust enrichment the respondent has produced a certificate from the Cost Accountant that no amount over and above invoices price has been received from the buyers and the same does not form a part of cost of production. In these circumstances, I do not find any infirmity and the same is upheld. The appeal filed by the Revenue is dismissed.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
??
??
??
6