2010 (12) TMI 77 - AT - Central Excise

Refund - twice payment of duty - assessee filed a refund claim for the amount of duty (Rs. 5,87,157/-) which was paid in November-December, 2006 on the ground that they paid duty on the same goods twice. - held that - the ld.Commissioner (Appeals) examined the records and established correlation between the goods on which duty was paid in November-December, 06 by the respondent and the goods which was sold on payment of duty in March, 2007. The present appeal of the Revenue does not contain any material to enable this tribunal to disturb the correlation established by the lower appellate authority. - Though refund is allowable, matter remanded back to reconsider the issue of unjust enrichment.

Summary

Issues:
1. Adjournment sought due to medical reasons rejected by the tribunal.
2. Dispute regarding refund claim for double payment of duty.
3. Challenge to the maintainability of the refund claim based on self-assessment.
4. Correlation between goods on which duty was paid and goods sold.
5. Examination of unjust enrichment aspect in the refund claim.

Issue 1:
The tribunal rejected the adjournment sought by the consultant representing the respondent due to medical reasons, as the request was considered lacking in good faith. The consultant had a history of seeking adjournments in other cases as well, and the tribunal took judicial notice of this fact.

Issue 2:
The respondent had paid duty twice on the same goods - first in November-December 2006 and then in March 2007 after reprocessing and selling the sugar. The Assistant Commissioner initially rejected the refund claim, citing lack of evidence establishing that the goods sold in March 2007 were the same as those on which duty was paid earlier. However, the Commissioner (Appeals) found a correlation between the goods covered by the release orders in 2006 and those sold in 2007, thereby allowing the refund claim.

Issue 3:
The Revenue contended that the refund claim should be dismissed as the claimant did not challenge the self-assessment of November-December 2006. The tribunal disagreed, stating that this was a mixed question of fact and law, and such a contention could not be raised for the first time at the appellate stage.

Issue 4:
The Commissioner (Appeals) established a correlation between the goods on which duty was paid and those sold, a decision supported by the dismissal of a similar appeal by the tribunal in another case. The tribunal found no grounds to disturb this correlation, leading to the conclusion that the refund claim was rightly allowed.

Issue 5:
While the correlation between the goods was established, the aspect of unjust enrichment in the refund claim was not examined by the original authority or the Commissioner (Appeals). The matter was remanded to the original authority to assess whether the refund claim was barred by unjust enrichment under Sec.11B of the Central Excise Act, emphasizing the need for a thorough examination of this aspect before making a final decision.