Custom, Excise & Service Tax Tribunal
M/S. Kone Elevator India Pvt. Ltd vs Cce, Chennai - Iv on 14 October, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/1340/2004
(Arising out of Order-in-Appeal No. 48/2004 (M-IV) dated 13.08.2004, passed by the Commissioner of Central Excise, (Appeals), Chennai).
For approval and signature
Honble Shri P.K. DAS, Judicial Member
Honble Shri R. PERIASAMI, Technical Member
_______________________________________________________
1. Whether Press Reporters may be allowed to see the : No
order for Publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair : Seen
copy of the Order.
4. Whether order is to be circulated to the : Yes
Departmental Authorities? ______________________________________________________
M/s. Kone Elevator India Pvt. Ltd. : Appellant
Vs.
CCE, Chennai - IV : Respondent
Appearance Shri Prasanth, Adv., for the appellant Shri. M. Rammohan Rao, DC(AR), for the respondent CORAM Honble Shri P.K. DAS, Judicial Member Honble Shri R. PERIASAMI, Technical Member Date of Hearing : 14.10.2014 Date of Decision: 14.10.2014 FINAL ORDER No. 40648 / 2014 Per: P.K. Das, The appellant filed this appeal against rejection of refund claim on the ground of principle of unjust enrichment, for the period June, 2002 to December, 2002. The Ld. Advocate fairly submits that in their own case, the Tribunal by Final Order No. 40013/2013 dated 09.01.2013, on the identical issue for the earlier period dismissed their appeal. The relevant portion of the order is reproduced below:-
5. After hearing both sides and on perusal of the records, we find that the Commissioner (Appeals), rightly allowed the amount of refund upto 24.06.1999 following the decision of the Honble Supreme Court in the case of Mafatlal Industries (supra). Thereafter, the principle of unjust enrichment is applicable as per amendment of Rule 9B of the erstwhile Central Excise Rules, 1944 by Notification No. 45/99-CE (NT) dated 25.06.1999. The Honble Supreme Court in the case of Union of India Vs. M/s. Solar Pesticide Pvt. Ltd. reported in 2000 (116) ELT 401 (S.C.) held that the principle of unjust enrichment would be applicable even in the case of captive consumption. We agree with the submissions of the learned AR for the Revenue that uniformity of price cannot be a bar for unjust enrichment. The Honble Supreme Court in the case of Commissioner of Central Excise, Mumbai-II Vs. Allied Photographies India Ltd. Vs. CCE, reported in 2004 (166) ELT 3 (S.C.) held that consistency of price of final goods f the assessee did not materially lead to the conclusion that incidence of duty had not passed on to the customers. We find that in the instant case, no serious attempt has been made on the part of the appellant neither before the Commissioner (Appeals) nor before this Tribunal so as to establish that the incidence of duty has not been passed on to the customers. Hence, we do not find any reason to interfere with the order of Commissioner (Appeals). As such, we dismiss the appeal filed by the appellant.
2 After considering the submissions of both the sides and following the Tribunals earlier order as mentioned above, we dismiss the appeal filed by the appellants.
(Dictated and pronounced in the Open Court)
(R. PERIASAMI) (P.K. DAS)
TECHNICAL MEMBER JUDICIAL MEMBER
BB
2