2016 (8) TMI 1328 - AT - Central Excise

Refund claim - finalization of provisional assessment - denial on the ground of time bar and unjust enrichment - Held that - Any duty collected in excess during the pendency of finalisation of provisional assessment is in excess of that authorized by law and must, perforce, be returned to the assessee. There is no requirement for a separate application for refund. The original authority erred in directing that a claim be filed in consequence to finalisation and the first appellate authority erred in concurring with the finding that a part of the claim was barred by limitation. Unjust enrichment - Held that - The appellant has produced a certificate of Chartered Accountant that the amount receivable has been shown in the accounts as receivable and this is sufficient evidence that the incidence of duty has not been passed on. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Refund claim rejection for being beyond the permissible period and on grounds of unjust enrichment.
2. Discrepancy in duty component in commercial invoices.
3. Challenge to rejection based on limitation of time for provisional assessments.

Analysis:

1. The appellant, M/s. Savita Oil Technologies Ltd., filed a refund claim due to the finalization of provisional assessment. The claim of Rs. 14,52,110/- was partly allowed, with Rs. 1,30,564/- rejected for being sought beyond the permissible period. The balance was not released due to unjust enrichment. The appeal was made to the Commissioner of Central Excise (Appeals) after the lower authority concurred with the rejection.

2. The appellant had sought provisional assessment for 2010-11, leading to excess duty payments entitling them to a refund. A significant portion of the claim was sanctioned, but a part was transferred to the Fund due to a discrepancy in the duty component not being separately itemized in commercial invoices. The appellant challenged the allegation of passing on the duty burden to customers, citing legal precedents and a certificate from a Chartered Accountant.

3. The issue of time-bar was raised concerning the refund claim. The judgment highlighted that any duty collected in excess during the provisional assessment's finalization must be returned to the assessee, without the need for a separate refund application. The original and first appellate authorities were found to have erred in directing a separate claim and concluding that part of the claim was time-barred. The appellant's production of a certificate from a Chartered Accountant indicating the duty burden as 'receivable' was deemed sufficient evidence of non-passing on of the duty incidence.

In conclusion, the appeal was allowed based on the findings that the refund was a consequence of finalization of provisional assessment, and there was no unjust enrichment due to the duty burden not being passed on. The judgment emphasized the legal requirements for refund claims and the importance of proper documentation to support claims of non-passing on of duty incidence.