Custom, Excise & Service Tax Tribunal
M/S Multi-Flex Lami Print Ltd vs Commissioner Of Central Excise, Raigad on 13 April, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. E/1450/11 (Arising out of Order-in-Appeal No. US/158/RGD/2011 dated 3.8.2011 passed by the Commissioner of Central Excise (Appeals), Mumbai-II). For approval and signature: Honble Shri Raju, Member (Technical) ======================================================
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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Multi-Flex Lami Print Ltd. Appellant Vs. Commissioner of Central Excise, Raigad Respondent Appearance: Shri Sachin Chitnis, Advocate for Appellant Shri N.N. Prabhudesai, Supdt. (AR) for Respondent CORAM: SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 28.03.2016 Date of Decision: 13.04.2016 ORDER NO. Per: Raju
The appellant, M/s Multi-Flex Lami Print Ltd., cleared certain material as such in the month of September, 2009 and debited duty. They again debited duty at the end of the month along with the monthly payment. They approached the Assistant Commissioner for retaking the credit of duty which was paid twice. However, they were advised to file a refund claim. The appellant filed a refund claim, which was sanctioned by the Assistant Commissioner. When the refund was sanctioned, the Assistant Commissioner did not go into aspect of unjust enrichment. Revenue aggrieved by this order, challenged before the Commissioner (Appeals) who vide impugned order allowed the Revenues appeal. He held that the provisions of unjust enrichment are applicable to the situation relying on the decisions of the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. 2005 (181) ELT 328 (SC) and Mafatlal Industries Ltd. Vs. Union of India 1997 (89) ELT 247 (SC). The appellant had submitted a C.A. certificate before Commissioner (Appeals) which stated as follows: -
On the basis of records produced before us and explanation made to us, we hereby certify that Multi-Flex Lami-Print Ltd. has returned raw material to suppliers vide Tax Invoice No. 002394 dated 9.9.2009 and 002626 dated 25.9.2009. Invoices includes excise amount Rs.65,257/- which have been reversed by debiting to RG-23A Part-II vide entry no. 1662 dated 9.9.2009 and 1805 dated 25.9.2009 and also included again at the time of monthly payment of excise duty of Sept. 2009. Thus, same amount paid twice.
We further certify that excess paid amount Rs.67,257/- has been debited to Excise Modvat receivable account and at time of refund same account has been credited.
2. Learned Counsel for the appellant argued that in the instant case they have paid the duty twice and, therefore, the question of unjust enrichment does not arise. For this purpose, he relied on the decisions of the Tribunal in case of Commissioner of Central Excise Vs. KRBL Ltd. 2008 (227) ELT 145 (Tri) and Commissioner of Central Excise Vs. Castrol India 2007 (219) ELT 553 (Tri). He also relied on the decision of the Hon'ble High Court of Gujarat in case of Swastik Sanitarywares 2012-TIOL-757-HC-AHM-CX.
3. Learned AR relied on the impugned order. He also relied on the decision of the Hon'ble Supreme Court in the case of Solar Pesticide Pvt. Ltd. 2000 (116) ELT 401 (SC). He also relied on the decision of Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. 2005 (181) ELT 328 (SC) to assert that the incidence of duty is not the same as duty. He argued that the certificate of C.A. given by the appellant is not sufficient to establish that there was no unjust enrichment.
4. I have gone through the rival contentions. I find that the fact that the payment has been made twice is not disputed. The only dispute is that whether the burden of unjust enrichment has been discharged by the appellant or not? I find that the appellant has submitted C.A. certificate before the Commissioner (Appeals) and there is no finding by the Commissioner (Appeals) in respect of the C.A. certificate. While Commissioner (Appeals) specifically observed that the certificate has been submitted and he has not given any reason why he has considered the same as insufficient.
5. In view of the above, it is obvious that the Commissioner (Appeals) has not examined the evidences submitted by the appellant before him and, therefore, the order of the Commissioner (Appeals) is not a speaking order. The impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to give specific finding on the evidence already submitted by the appellant as well as any evidence that the appellant may submit at the time of do novo proceedings.
(Pronounced in Court on 13.04.2016) (Raju) Member (Technical) Sinha 4 Appeal No. E/1450/11