Custom, Excise & Service Tax Tribunal
M/S. Krishna Steel Industries vs Cce Nasik on 31 May, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/733/09 Mum
(Arising out of Order-in-Appeal No. IPL/06/NSK/2009 dated 21.01.2009 passed by the Commissioner of Central Excise & Customs (Appeals), Nasik)
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?
M/s. Krishna Steel Industries
:
Appellant
Versus
CCE Nasik
Respondent
Appearance Shri M.S. Jagesha, Advocate for Appellants Shri V.K. Singh, SDR for Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 31.05.11 Date of Decision : 31.05.11 ORDER NO.
Per : Ashok Jindal The appellant is in appeal against the order wherein their appeal was dismissed on the ground that the appellant has failed to discharge their burden of unjust enrichment.
2. Facts of the case are that the appellant was discharging their duty liability under the Compounded Levy Scheme. Initially their duty liability was fixed at Rs.39,356.00 per month for the period from 01.04.1999 to 31.03.2000 on which the appellant was paying duty and clearing their final products. Thereafter this duty liability was reduced to Rs.16,597/- on 9.11.2005 for the period from 1.4.1999 to 31.03.2000. Therefore, the appellant filed a refund claim of the excess duty paid during the above said period and the refund claim was sanctioned and issued. Against the order of sanctioning of refund claim, Revenue preferred an appeal before the Commissioner (Appeals) who considered the submission of the Revenue holding that the refund claim is hit by bar of unjust enrichment and allowed the Revenues appeal. Against that order the appellant preferred an appeal before this Tribunal and this Tribunal vide Order No.A/121/08/WZB/SMB/C-II dated 25.01.2008 holding that bar of unjust enrichment is applicable in this case. The appellant has also filed an application for Rectification of Mistake of the order of this Tribunal dated 25.01.2008 on the ground that this Tribunal has not considered the Profit and Loss account and Chartered Accountant Certificate while passing the order on that ROM application also and the Tribunal again hold that vide Order No. M/134/08 dated 13.06.08 after considering the C.A. Certificate and Profit and Loss Account held that of unjust enrichment is applicable to their case. When this proceedings were going on, the department in pursuant to the order of the Commissioner (Appeals) issued a show-cause notice dated 19th February, 2007 demanding the refund sanctioned to the appellant which was hit by bar of unjust enrichment. After the order of this Tribunal, recovery of erroneous refund sanction was confirmed by the adjudicating authority. On appeal before the Commissioner (Appeals) the order was upheld. Against that order the appellant is before me.
3. Shri M.S. Jagesha, learned Advocate for the appellant submitted that the appellant has discharged their liability the bar of unjust enrichment is not applicable to them by producing C.A. Certificate and showing that the amount is recoverable by the Central Excise department in the Profit and Loss Account, Balance Sheet, therefore the refund has been rightly sanctioned and recovery order is to be set aside. To support this contention he placed reliance on the decision in the case of Paper Products Ltd. vs. Commissioner of Customs (Import), Mumbai 2009 (233) ELT 227 (Tri. Mum) and Gujarat State Fertilizers & Chem. Ltd. v. Commissioner of Central Excise, Vadodara 2005 (186) ELT 6.7 (Tri. Mumbai). He also relied on the decision of CCE Pune II v. Kumbhi Sakari SSK Ltd. 2008 (232) ELT A-199.
4. On the other hand, Shri V.K. Singh, learned SDR submitted that the issue involved in this case has attained finality by the decision of this Tribunal by order dated 13.06.2008. Therefore, the appeal is liable to be rejected.
5. Heard and considered.
6. On careful examination of the submissions made by both the sides, I find that in this case this Tribunal has already held that bar of unjust enrichment is applicable to the facts of this case after considering the C.A. Certificate as well as balance sheet for the relevant period. I am also observed that the order of the Commissioner dated 09.07.2005 for re-determining the reduced duty liability was issued only in 2005 and the goods have been cleared by the appellants during the impugned period 01.04.1999 to 31.03.2000. It is very strange to observe that the appellant had shown that the duty recoverable from the department on 31.03.2001 when the Commissioner has not redetermined the duty liability at that time not the duty was paid under protest. I also do agree with the contention of the Revenue when the issue has attained finality by the order of the Tribunal holding bar of unjust enrichment is applicable after considering the C.A. Certificate and Profit and Loss Account / Balance Sheet. The appellant has failed to discharge their burden to prove that the duty paid has not formed part of the cost of the final product which they cleared during the impugned period. Therefore, I do not find any merits in the appeal and the same is rejected.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 4