Custom, Excise & Service Tax Tribunal
M/S.Salve Pharmaceuticals Pvt. Ltd vs Cce, Delhi-I on 5 November, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT IV
Excise Appeal No.E/53695/2014 EX. [SM]
[Arising out of Order-in-Appeal No.37/CE/DLH/2014 dated 01.04.2014 passed by the Commissioner of Central Excise (Appeals), Delhi-I]
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
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.Salve Pharmaceuticals Pvt. Ltd. Appellant
Vs.
CCE, Delhi-I Respondent
Present for the Appellant : Shri Awneet Singh, Advocate
Present for the Respondent: Shri Vaibhav, D.R.
Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
Date of Hearing/Decision: 07.10.2015
FINAL ORDER NO. 54003/2015
PER: S.K. MOHANTY
Rejection of refund claim on the ground of unjust enrichment is the subject matter of present dispute.
2. The facts of the case are that the appellant is engaged in the manufacture of pharmaceutical products. On 17.02.2012, the appellant had filed refund claim amounting to Rs.3,50,878/- before the Jurisdictional Central Excise Authorities in terms of Section 11B of the Central Excise Act, 1944 on the ground that excess Central Excise duty has been wrongly paid by it. In the refund application, it was stated that the appellant was required to deposit Central Excise Duty at the rate of 5%, whereas due to inadvertence, excess duty of Rs.10% was deposited into the Government Account. The refund application was rejected by both the authorities below on the ground that the appellant had not produced any evidence to show that the incidence of duty has not been passed on to any other person. Hence this present appeal before this Tribunal.
3. I find that the note forming the part of accounts for the year ending 31.03.2012, which is an attachment to the Balance-Sheet for the relevant period has clearly shows that the excess paid duty is receivable from the Central Excise Department. The relevant portion in the said note is extracted herein below:-
2.25 The company has claimed that an amount of Rs.3,50,878/- has been paid as an excess payment under Central Excise Duty and is therefore receivable from the Department. However, for the purpose of this balance sheet, the same has been presently charged to revenue and the refund would be accounted for when the same is actually received from the department. Hence, the profit for the year is understated by an amount of Rs.3,50,878/-.
4. Further I also find from the available records that upon verification of the Balance-Sheet and the annual accounts, the practicing Chartered Accountant vide Certificate dated 14.09.2012 has certified that the incidence of excess paid Central Excise Duty has not been passed on to any other person and the same has been borne by the appellant. Since the books of accounts maintained by the appellant clearly shows that the incidence of duty has not been passed on and the Chartered Accountant also certified the same aspect, I am of the view that the refund claim cannot be rejected on the ground of doctrine of unjust enrichment.
5. Therefore, I do not find any merits in the impugned order and thus, the appeal is allowed in favour of the appellant with consequential relief.
(Dictated and pronounced in the open Court) (S.K. MOHANTY) MEMBER (JUDICIAL) Anita ??
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