Customs, Excise and Gold Tribunal - Mumbai
Space Age Industrial Projects Ltd. vs Commissioner Of Central Excise on 12 July, 2004
ORDER Moheb Ali M., Member (T)
1. This appeal arose out of the order of the Commissioner (Appeals) who in the impugned order upheld the order of the lower authority. The lower authority sanctioned a refund claim made by the appellant to the tune of Rs. 68,993/- in terms of Section 11B(2) of the Central Excise and Salt Act, 1944 but appropriated the same towards the outstanding government dues from the appellants in terms of Section 11 of the same Act.
2. Briefly the facts are that the appellants are engaged in the manufacture of EOT crane and have used such crane in their own premises. They were denied the benefit of notification 118/75 by the authorities. The appellants paid the duty as demanded. Aggrieved by the said order, they filed an appeal to the Tribunal. The Tribunal allowed their appeal and in pursuance of the order of the Tribunal, the appellants filed a refund claim for the duty excess paid by them. The Assistant Commissioner, Pune-V Division, dealt with the refund application and observed that since the goods are captively consumed, the question of passing on the duty burden does not arise and accordingly sanctioned the claim, but appropriated the same towards outstanding government dues. The Commissioner of Central Excise, Pune, reviewed the said order and directed the Assistant Commissioner to file an appeal against it to the Commissioner (Appeals) on the ground that the Assistant Commissioner has not examined the question of unjust enrichment while sanctioning the refund. The Commissioner (Appeals) however upheld the order of the lower authority. Thus, it appears that the Commissioner (Appeals) agreed with the lower authority's decision that the question of unjust enrichment does not arise. He only confirmed the decision of the lower authority insofar as appropriation of the refund amount against the outstanding dues.
3. The appellants' plea is that such an appropriation is not warranted inasmuch as the Tribunal, vide order No. E/230 to 231/95-BI dated 24.4.1995, has overruled the demand of duty over six months and, therefore, an amount of Rs. 4,31,749/- only is due from the appellants against which they have already paid an amount of Rs. 5 lakhs. The Assistant Commissioner, vide his order No. 56/CEX/96 dated 30.3.1996, sanctioned the refund claim of Rs. 68,250/- and ordered appropriation against dues which are non-existent.
4. Heard both sides.
5. We find that the submissions made by the appellants were not made by them before the Commissioner (Appeals). Before the said authority they have only tried to justify as to how the question of unjust enrichment does not arise in their case as the goods produced were used only in their factory. They have never raised the issue that nothing in the form of government dues was pending against them for the Assistant Commissioner to appropriate the sanctioned amount. It is not possible for us to deal with this aspect at this stage. The appellants should have brought the contention that no dues were payable by them before the Commissioner (Appeals). Having failed to do so, they cannot agitate these fresh issues before us.
6. We dismiss the appeal on the ground that the issues raised before us were not raised before the lower authority.
(Operative part pronounced in court)