Customs, Excise and Gold Tribunal - Calcutta
Commissioner Of Central Excise And ... vs Soosree Plastic Industries (P) Ltd. on 29 November, 2001
JUDGMENT
Archana Wadhwa
1. The Revenue has filed the present appeal, being aggrieved with the order of Commissioner (Appeals) vide which she has set aside the impugned order of the Asst.Commissioner rejecting the refund claim of the respondents on the point of limitation.
2. It is seen that the respondents filed a refund claim originally on 10.12.95 in respect of the differential duty excess paid by them and on the grounds that the purchase order originally entered into between them and their buyers was subsequently amended and prices revised on the lower side. The invoices were raised by them at the lower price. The said refund claim was returned by the authorities to the respondents for compliance on certain infirmations and for re-submission. The said refund claim was subsequently re-submitted by the appellant on 10.4.96.
3. On the above basis the respondents were issued a show cause notice to reject the refund claim on the ground that the same was filed beyond the period of limitation of six months from the relevant date. The respondents' contention was that the original claim having been filed well in time, the same was not hit by the bar of limitation of six months as provided under the provisions of Section 11B. The Asst.Commissioner, however, did not accept the above contention and rejected the claim as barred by limitation. On an appeal against the above order, they succeeded before Commissioner (Appeals).
4. I have heard Shri A.K.Mondal, ld.JDR for the Revenue and Shri S.Kanungo, ld.adv. and Shri S.Sathpatty, ld.adv. for the respondents. As regards the point of limitation I agree with the views of Commissioner (Appeals) that the original refund claim having been filed by the respondents within the period of limitation, the same cannot be held to be time barred. However, it is the contention of the ld.JDR that the aspect of unjust enrichment has not been looked into by the Asst.Commissioner inasmuch as the refund claim was rejected on the point of limitation. As such he submits that the Commissioner (Appeals), while accepting the appellant on the point of limitation should have remanded the matter to the Asst.Commissioner for the purpose of unjust enrichment. He relies upon the Tribunal's decision in the case reported in 2001(123)ELT 988(T) and submits that subsequent reduction in prices cannot be made the basis for refund of duty when the duty was paid originally at the agreed price.
5. Inasmuch as the refund claim was rejected on the point of limitation and the unjust enrichment aspect was not verified by the Asst.Commissioner, I, while agreeing with the views of Commissioner (Appeals) that the refund cannot be held to be time barred, remand the matter to the Asst.Commissioner for looking into the refund claim from the unjust enrichment angle. Appeal of the Revenue is thus disposed of in above terms.
(Pronounced)