Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Nashik vs M/S. D. J. Malpani on 16 May, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/2958 & 2959/2004-Mum. (Arising out of Order-in-Appeal No. CEX/XI/JMJ/282/916/NSK/APL/2004. dated 29.06.2004 & CEx/.XI/MJ/283/916/NSK/APL/2004. dated 29.06.2004 passed by the Commissioner (Appeals) Aurangabad, Nashik.-IV,) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. P.K.Jain, Member (Technical) ============================================================
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?
============================================================= Commissioner of Central Excise, Nashik :
Appellant VS M/s. D. J. Malpani. :
Respondent Appearance Shri Navneet, Additional Commissioner for Appellant Shri D.P. Patankar , Advocate (A.R) for respondent CORAM:
Mr. S.S. Kang, Vice President
Mr. P.K. Jain, Member (Technical)
Date of hearing : 16.05.2013
Date of decision : 16.05.2013
ORDER NO.
Per : S.S. Kang
Revenue filed these appeals against the impugned order passed by the Commissioner (Appeals) therefore are being taken up together and disposed of them by this common order.
2. In appeal No. E/2958/2004 the Revenue challenged the impugned order whereby the Commissioner (Appeals) upheld classification of the goods manufactured by the respondents under Tariff Heading 2401.90 of the Central Excise Tariff Act. In Appeal No. E/2959/2004 Revenue challenged the impugned order whereby the Commissioner (Appeals) dismissed the appeal filed by the Revenue against the sanction of refund of Rs.14,66,379/- .
3. In respect of the classification of the product in question we find that the issue is now settled by the Tribunal in respondents own case in Appeal No. E/119/2003 & Appeal No. E/3322/2002 in favour of the respondent and this order has been accepted by the Revenue. In view of above Appeal No. E/2958/2004 whereby the Revenue challenged the classification of the product under Tariff Heading 2401.90 of the Central Excise Tariff has no merit the same is dismissed.
4. In respect of the Appeal No. 2959/2004, the respondents filed a refund claim and the same has been sanctioned by the adjudicating authority vide order dt. 1.4.2003, the refund of Rs.14,66,379/-. Revenue challenged the order of the adjudicating authority sanctioned the refund. We find in the impugned order in para 2(iii) Commissioner (Appeals) noted the findings of the adjudicating authority in respect of the refund claim. However there is no finding in the impugned order in respect of unjust enrichment. We find that the Honble Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India reported in 1997 (89) ELT 247 held that all the refund claim are subject to the principles of unjust enrichment. In these circumstances, we find that in Appeal No. E/2959/2004 the matter requires reconsideration by the Commissioner (Appeals) afresh in respect of unjust enrichment. The impugned order in the appeal No. E/2959/04 is set aside and matter is remanded to the Commissioner (Appeals) to decide afresh after affording an opportunity of hearing to the present respondents. The appeal is disposed of as indicated above.
(Dictated in court) (P.K. Jain) Member (Technical) (S.S. Kang) Vice President Sm ??
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