Custom, Excise & Service Tax Tribunal
Cce Pune Ii vs U.S. Vitamin Ltd on 7 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPLICATION NO. E/MA(Ors.)/236/07
IN APPEAL NO. E/1840/06 Mum
(Arising out of Order-in-Appeal No. PII/032/06 dated 21.2.2006 passed by the Commissioner of Central Excise (Appeals), Pune I)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Pune II
:
Appellant
Versus
U.S. Vitamin Ltd.,
Respondent
Appearance Shri D.D. Joshi, Supdt (A.R.) For appellants Shri Punit Gupta, C.A. For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 07.03.2014 Date of Decision : 07.03.2014 ORDER NO.
Per Ashok Jindal The Revenue is in appeal against the impugned order wherein the learned Commissioner (Appeals) allowed the refund claim of the respondent holding that bar of unjust enrichment is not applicable to their case. The Revenue has also filed a miscellaneous application for placing additional grounds to their appeal memo.
2. After hearing both the sides, the miscellaneous application for placing additional grounds is allowed and taken on record.
3. It is a case where the respondent paid duty on physician samples wrongly. After realizing their mistake that duty is not payable, the respondent has filed a refund claim before the adjudicating authority. The refund claim was rejected by the adjudicating authority on the ground of unjust enrichment. Against the rejection, the respondent filed an appeal before the learned Commissioner (Appeals). The Commissioner (Appeals) vide order No. PII/BKS/334/2003 dated 18.11.2003 allowed their appeal holding that there was no unjust enrichment as the samples were distributed of cost to Doctors and as such no excise duty has been recovered against the same. Accordingly the refund claim is admissible. This order was not challenged by the Revenue and the same has been accepted. Consequent to this order, the respondent filed a refund claim which was rejected by the adjudicating authority on the ground that the duty incidence has been passed on to the customers. On appeal before the Commissioner (Appeals), the refund was granted. Aggrieved by the same, the Revenue is before me.
4. Heard both sides.
5. The learned A.R. appearing for the Revenue submits that the respondent had debited the duty components in the Profit and Loss Account as expenditure therefore, incidence of duty has been passed on to the buyers. To support his contentions the learned A.R. relied on the judgement of the Honble High Court of Calcutta in the case of CCE vs. Bata Shoe Co. (P) Ltd. - 2004 (169) ELT 3 (Cal) and Union of India v. Solar Pesticide Pvt. Ltd. - 2000 ((116) ELT 401 (SC). He further contend that as the respondent has failed to pass bar of unjust enrichment, the refund claim is not admissible. Hence, the learned A.R. prays that the impugned order is to be set aside.
6. On the other hand, the learned Advocate appearing for the respondent submitted that the issue of unjust enrichment was examined in the earlier proceedings by the Commissioner (Appeals) who held that the refund is admissible, which is a final order. He prays that as the respondent is entitled for the refund claim, therefore, the appeal is to be dismissed.
7. Considered the submissions made by both the sides and perused the records.
8. In this case, initially the refund claim was rejected by the adjudicating authority. On appeal, the learned Commissioner (Appeals) issued a detailed order holding that the duty incidence has not been passed on to the buyers and the same has not been challenged by the Revenue. When the Commissioner (Appeals) held that the duty burden has not been passed on to the buyers and the same was not challenged by the Revenue, the appeal is not sustainable. Therefore, I do not find any merits in the appeal filed by the Revenue. Accordingly, the same is dismissed.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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