Custom, Excise & Service Tax Tribunal
M/S. Yashraj Industries vs Commissioner Of Central Excise, Mumbai ... on 8 June, 2012
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. E/720/12
(Arising out Order-in-Appeal No. YDB(10) MV/2012 dated 15.2.2012 passed by the Commissioner of Central Excise(Appeals), Mumbai I)
For approval and signature:
Honble Mr. Ashok Jindal, 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. Yashraj Industries
Appellant
Vs.
Commissioner of Central Excise, Mumbai V
Respondent
Appearance:
Shri Punit Gupta, CA for the appellant Ms. D.M. Durando, AR for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 08.06.2012 Date of decision : 08.06.2012 O R D E R No:..
The appellant are manufacturers of excisable goods and also claiming benefit of exemption of Notification 8/03 and they are not paying excise duty on their clearances. During the course of investigation, the appellant were asked to make pre-deposit of the duty as they are not entitled to SSI exemption. Therefore, appellant paid Rs.1.5 lakhs during the course of investigation. After conclusion of the investigation, no show-cause notice was served on the appellant nor any intimation was received by the appellant regarding the non-availment of the benefit of Notification 8/03. Therefore, appellant filed a refund claim of the amount paid by them during the course of investigation. Both the lower authorities rejected the refund claim on the premise that the doctrine of unjust enrichment is applicable to this case.
2. On going through the records, I find that the appellant has paid a sum of Rs.1.5 lakhs during the course of investigation. As the appellant are claiming the benefit of Notification 8/03 being SSI unit, they are not collecting Central Excise duty from their customers. In this scenario, question of unjust enrichment does not arise at all when they have not collected duty from their customers. Further, I find that no show-cause notice has been served on the appellant for appropriation of the amount collected by them during the course of investigation. Both the lower authorities failed to appreciate the fact that when it is apparent on record that the appellant is availing the benefit of SSI exemption under Notification no. 8/2003 and clearing the goods without payment of duty, the question of unjust enrichment does not arise.
3. With these observations, the impugned order is not sustainable in the eyes of law. Accordingly, the same is set aside and appeal is allowed with consequential relief.
(Dictated in Court) (Ashok Jindal) Member (Judicial) SR 3