Custom, Excise & Service Tax Tribunal
M/S. Behr India Ltd vs Commissioner Of Central Excise, ... on 3 September, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Application No. E/S/1192/2012-Mum. In Appeal No. E/815/2012-Mum. (Arising out of Order-in-Appeal No. PIII/RS/64/2012 dated 29/02/2012 passed by the Commissioner (Appeals) Central Excise, Pune-III ) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. Sahab Singh, 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?
============================================================= M/s. Behr India Ltd. :
Appellant VS Commissioner of Central Excise, Pune-III :
Respondent Appearance Shri Bharat Raichandani, Advocate for Appellant Shri D.M. Durando, Deputy Commissioner (A.R) for respondent CORAM:
Mr. S.S. Kang, Vice President
Mr. Sahab Singh, Member (Technical)
Date of hearing : 03/09/2012
Date of decision : 03/09/2012
ORDER NO.
Per : S.S. Kang
Heard both sides.
2. Applicant filed this application for waiver of pre-deposit of duty of Rs.1,58,083/-.
3. The brief facts of the case are that applicants are engaged in the manufacture of Air Conditioning Parts for Motor Vehicles. The applicants filed a refund claim for Rs.1,58,083/- on 8.8.2011 on the ground that during the period October 2010 and December 2010. Applicant had paid more duty at the time of removal of excisable goods. The applicants charged the goods with MRP Rs.9,000/- instead of MRP Rs.1,950/- paid the duty wrongly at the higher value.
4. Adjudicating authority sanctioned the refund. The order passed by the adjudicating authority is reviewed by the Revenue and Commissioner (Appeals) set aside the adjudication order on the ground that the adjudicating authority has not gone into the issue of unjust enrichment.
5. The contention of applicant is that the adjudicating authority had gone into the issue of unjust enrichment and thereafter sanctions the refund therefore the impugned order is not sustainable.
6. The contention is that the customer of the applicant had not paid the higher duty. The applicant produced evidence regarding unjust enrichment by way of Chartered Accountant certificate and certificate from the customer stating that they had not availed CENVAT credit in respect of the invoices in question. The contention is that as the adjudicating authority after going into the issue of unjust enrichment sanctioned the refund claim. Therefore the grounds on which the Commissioner (Appeals) set aside the adjudication order are not sustainable.
7. The Revenue submitted that the applicants vide letter dt. 28.2.2012 stated that the burden of duty has passed on to their customer but subsequently issued the credit note and the credit notes were issued after the receipt of the refund amount. As the applicant admitted that they had collected higher duty from their buyer. Therefore, subsequent issue of credit note will not show that burden of duty has not been passed on. Hence, impugned order is rightly passed.
8. We have gone through the adjudication order as well as the order passed by Commissioner (Appeals). The adjudicating authority relied upon the verification report by the Range Superintendent and gave finding that applicant had paid Central Excise duty in excess. In view of this the adjudicating authority held that there is no question of unjust enrichment. The Commissioner (Appeals) in the impugned order had gone through the documents produced by the applicant and relied upon the letter dt.28.2.2012 and held that the adjudicating authority has not considered the issue of unjust enrichment.
9. In these circumstances, we find that the issue of unjust enrichment required to be reconsidered by the adjudicating authority afresh after taking into consideration the evidence produced by the applicants. The impugned order is set aside after waiving the pre-deposit of dues and matter is remanded to the adjudicating authority to decide afresh after affording an opportunity of hearing to the appellant. The appeal is disposed of by way of remand.
(Dictated in court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President Sm ??
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