2008 (11) TMI 538 - AT - Central Excise

Refund - Unjust enrichment - Cash refund - Held that - the appellant is eligible for credit of the excess amount paid only in DEPB credit and no cash refund is permissible.

Summary

Issues:
1. Refund eligibility under Notification No. 4/97 for granules made from reprocessed waste and scrap material.
2. Justification of value enhancement for refund.
3. Excess payment refund debited from DEPB scrip.

Analysis:
1. The appeal involved three main issues regarding refund eligibility. Firstly, the original authority sanctioned a refund under Notification No. 4/97, but ordered the amount to be credited to the welfare fund due to unjust enrichment concerns. The Commissioner (Appeals) allowed cash refund based on the balance sheet details and a certificate from a Chartered Accountant showing a loss on the imported product, indicating crossing the unjust enrichment threshold. Secondly, a value enhancement proposal was not upheld by the original authority, but the Commissioner (Appeals) allowed cash refund without applying the unjust enrichment bar. Lastly, an excess payment debited from a DEPB scrip was ordered to be re-credited by the original authority, with the Commissioner (Appeals) permitting cash refund if re-credit was not feasible.

2. The Department argued that unjust enrichment applied to the case, citing relevant precedents. However, the Advocate supported the Commissioner (Appeals)' decision, emphasizing the correctness of not applying unjust enrichment and referring to a Tribunal decision allowing refund using DEPB scrips. The Tribunal found that the cash refund was permissible based on the balance sheet details and the CA certificate, but disagreed with allowing cash refund if re-credit in DEPB scrip was not possible, aligning with the precedent set by Milton Laminates Ltd.

3. The Tribunal upheld the cash refund eligibility based on the factual details provided, but disagreed with allowing cash refund if re-credit in DEPB scrip was not feasible due to the expired validity. The issue of re-credit validity was acknowledged, suggesting resolution between the appellant and DGFT authorities as per the law. Ultimately, the appeal was disposed of with the decision that only credit in DEPB was permissible for the excess amount paid, denying cash refund in such cases.