Custom, Excise & Service Tax Tribunal
Cipla Ltd vs Commissioner Of Central Excise, Raigad on 9 December, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Application No. E/S/183/11 in Appeal No. E/170/11
(Arising out Order-in-Appeal No. YDB/710/RGD/2010 dated 25.10.2010 passed by the Commissioner of Central Excise (Appeals), Mumbai II)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. P.R. Chandrasekharan, Member (Technical)
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 Yes 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?
Cipla Ltd.
Appellant
Vs.
Commissioner of Central Excise, Raigad
Respondent
Appearance:
Ms. Purnima Lakshminarayanan, Advocate for the appellant Shri Navneet, Addl. Comm (AR)for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of hearing : 09.12.2011 Date of decision : 09.12.2011 O R D E R No:..
Per: Mr. Ashok Jindal, Member (Judicial) The appellant are in appeal against the impugned order wherein the order of sanctioning the refund claim was set aside by the Commissioner (Appeals) on the ground of unjust enrichment. The facts of the case are that the appellant are 100% EOU and they have imported certain inputs which were cleared by them as such. For payment of duty on these goods the appellant paid the duty from the CENVAT account. The department raised an objection that the duty for the goods cleared as such is payable from PLA. The appellant paid duty from the PLA and filed refund claim for the amount of which they have paid through their CENVAT account. The refund claim was sanctioned by the adjudicating authority and allowed to take the credit in CENVAT account. The said order was challenged by the department before the Commissioner (Appeals) on the ground the appellant has not passed the bar of unjust enrichment. Against that order the appellant are before us.
2. Heard the ld. Counsel and the AR. After hearing both sides, we find the appeal itself can be disposed of at this stage. Therefore, after waiver of requirement of pre-deposit, we take up the appeal itself for disposal.
3. It is an admitted fact that the duty has been paid twice i.e. custom duty was paid by debit to CENVAT credit account and further paid through PLA. It is not the departments case that the appellant had recovered twice from the customers. Therefore in these set of facts, bar of unjust enrichment is not applicable to the case. As we have held that bar of unjust enrichment is not applicable to the facts of this case, we set aside the impugned order and allow the appeal. (Dictated in Court) (P.R. Chandrasekharan) (Ashok Jindal) Member (Technical) Member (Judicial) SR 2