Custom, Excise & Service Tax Tribunal
Cce Jaipur-Ii vs M/S B.S.L. Ltd on 4 March, 2008
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COURT NO.II
E/Appeal No.1201 /2006-SM
(Arising out of order in appeal No.44/HKS/CE/JPR.II/06 dated 18.1.06 passed by the Commissioner of Central Excise (Appeals), Jaipur)
For approval and signature:
Honble Mr.P.K. Das, 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?
______________________________________________________
CCE Jaipur-II Appellant
(Rep. by Shri S. Gautam, DR)
Vs
M/s B.S.L. Ltd Respondent
(Rep. by Shri K.K. Sharma, Advocate) Coram: Honble Mr P.K. Das, Member(Judicial) Date of Hearing: 4 .3.2008 Order No. /2008-SM(BR) Per P.K. Das:
The relevant facts of the case in brief are that the respondents filed refund claim consequent upon finalization of provisional assessment vide order dated 31.3.2003 for the period 1.4.2001 to 31.3.2002, which was rejected by the adjudicating authority. By Order in appeal dated 28.11.2003, the Commissioner (Appeals) held that adjudicating authority has erred in not adjusting the amount of demand against the amount of refund and remanded the matter back to the Adjudicating Authority to dispose as per law. The Adjudicating authority by Order dated 1.10.2004, in compliance of the order of the Commissioner (Appeals) allowed the adjustment of demand and refund and the the differential amount of Rs. 1,77,784/-paid excess was transferred to Consumer Welfare Fund. He sanctioned refund of Rs. 2,25,622/- which was deposited in compliance of the stay order dated 5.9.2003 of the Commissioner (Appeals). The Revenue filed appeal before the Commissioner (Appeals) against the Adjudication Order, which was rejected.
2. The learned DR on behalf of the Revenue, reiterates the ground of appeal. He submits that in earlier Order in Appeal, the Commissioner (Appeals) directed to decide the matter in terms of law and therefore, the unjust enrichment is applicable on the refund of excess payment of duty. He further submits that both the authorities below failed to consider the adjustment of refund is not permissible without considering the unjust enrichment. He also submits that the adjudicating authority transferred the amount of Rs. 1,77,784/- to the Consumer Welfare Fund. According to the learned DR, the entire amount of refund claim should have been transferred to the Consumer Welfare Fund.
3. The learned Advocate on behalf of the respondents submits that unjust enrichment is not applicable in respect of the refund arising from provisional assessment and relied upon the decision of the Tribunal in the case of Timkin India Ltd Vs CC Kolkata reported in 2007 (217) ELT 197. He also submits that refund of pre-deposit, unjust enrichment is not applicable as held by the Tribunal in the case of Godrej Industries Ltd Vs CC Mumbai reported in 2007 (213) ELT 259.
4. After hearing both the sides and on perusal of record, I find that the Commissioner (Appeals) in his earlier order, directed to settle the refund claim after adjusting the amount of excess and short payment of duty on the finalization of provisional assessment. The Tribunal in the case of Timkin India (supra) held that doctrine of unjust enrichment is not applicable to provisional assessment even after finalization thereof. Therefore, the allowing the refund claim arising out of finalization of assessment has no merit. I find that the adjudicating authority sanctioned the refund of Rs. 2,25,620/-. The Tribunal in the case of Godrej Industries Ltd (supra) held that deposits made during pendency of appeal automatically become refundable to the assessee on success of their appeal and provisions of unjust enrichment are not attracted.
5. Commissioner (Appeals) rightly upheld the Adjudication Order as the bar of unjust enrichment is not applicable on the pre-deposit. So, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.
(Order dictated and pronounced in the open Court).
(P.K. Das)
MPS* Member(Judicial)