Customs, Excise and Gold Tribunal - Tamil Nadu
Cc vs Tuflike Glass Pvt. Ltd. on 8 May, 2000
Equivalent citations: 2000(92)ECR664(TRI.-CHENNAI)
ORDER V.K. Ashtana, Member (T)
1. In this Revenue appeal, the Revenue prays for stay of the operation of the order in appeal No. 565/99 dated 12.10.1999 passed by the Commissioner (Appeals) wherein the simple issue is whether the present refund claim would be hit by unjust enrichment or not. Since the matter lies in a short compass, we proceed to consider both the stay application as well as the appeal itself.
2. Shri M. Kunhikannan, learned DR submits that the order impugned has merely applied the decision of the Madras High Court in the case of M/s. Indo Swiss Synthetic Gem Manufacturing Co. v. CC as reported in 1995 (52) ECC 53 (Madras) holding that since the inputs were used for captive consumption, therefore, the doctrine of unjust enrichment will not apply, is not correct. He submits that this conclusion does not survive in view of the matter being finally decided by the Hon'ble Apex Court in the case of Solar Pesticides wherein it has been held that mere captive consumption by itself cannot rule out the applicability of the unjust enrichment and the matter would have to be examined in greater detail as to whether the incidence of duty was really not passed on to the end-product and through it to the consumers.
3. The learned DR requests that as the order impugned is patently wrong, it may be set aside.
4. The learned Counsel for the respondents submits that unjust enrichment would not apply in view of the fact that the inputs having been captively consumed. He submits that their Chartered Accountant has given detailed certificate to show that the incidence of duty has not passed on to the consumers because excess customs duty paid has not been considered while fixing the selling price of the end-product. He submits that the learned Commissioner (Appeals) has not considered this evidence at all in the impugned order but has applied the decision of the Madras High Court in the case of Indo Swiss Synthetic Gem Manufacturing Company (supra). He submits that this evidence needs to be re-evaluated as it clearly shows that incidence of duty has not been passed on. He further submits that when the matter was earlier remanded to the original authority the Assistant Collector had refused to sanction the refund on two grounds i.e. on classification as well as unjust enrichment. However, he had no business to examine and adjudicate on the classification issue as the matter had not been remanded to him by the Tribunal for that purpose. As was found out by the Commissioner (Appeals) in the order impugned, the CEGAT had stated that the only issue regarding unjust enrichment was left open. Therefore, the learned Counsel submits that on both these grounds the matter needs to be sent back to the original authority with specific direction that he should consider the said certificate of the Chartered Accountants and then pass a speaking order only with respect to unjust enrichment which they claim is not applicable in this case.
5. We have carefully considered the submissions and records of the case. Since the Chartered Accountant's certificate was not considered by the Commissioner (Appeals) although the certificate was before him, therefore, the order impugned is set aside being non-speaking order which had relied on the decision of the Madras High Court in the case of Indo Swiss Synthetic Gem Manufacturing Co. (supra) which has been upset by the Hon'ble Apex Court in the case of Solar Pesticides (supra). The attendant order in original had gone beyond the scope of the remand order of the Tribunal as the Assistant Collector had reopened the issue of classification for which he had no authority to do. Therefore, that attendant order is also set aside.
6. In view of both these orders having been set aside, the Revenue's stay application becomes infructuous and is disposed of accordingly.
7. In view of the above, the matter is remanded to the Assistant Collector concerned for de novo consideration of the only issue of applicability of the unjust enrichment or otherwise, in the light of the Supreme Court judgment in the case of Solar Pesticides (supra) as well as the Board's Circular No. 523/12/52 CX dated 6.4.2000. While doing so, the Assistant Collector shall consider in detail the Chartered Accountant's certificate on record by virtue of which the respondents are claiming that the incidence of duty has not been passed on to the consumers. He shall give personal hearing in the matter and then proceed to pass a detailed speaking order. The appeal is allowed by way of remand. The stay application is disposed of in the above terms.
(Dictated and pronounced in open Court).