2011 (5) TMI 96 - AT - Central Excise

Annual Production Capacity - Compounded Levy Scheme - Refund claim - Recovery of refund allowed earlier - The appellant having started their factory on 7.9.00 and their Annual Production Capacity fixed w.e.f. 11.9.00 and their being no production during the period from 1.9.00 to 7.9.00, the question of clearance of goods and payment of duty does not arise at all - Further, as no duty was paid on account of non-production of any goods, the question of recovery of the same from the customers does not arise - The impugned order is set aside and appeal allowed in favour of appellant.

Summary

Issues:
1. Erroneous payment of duty under Compounded Levy Scheme.
2. Refund claim for excess duty paid.
3. Recovery of erroneously refunded amount under Section 11A of Central Excise Act.
4. Unjust enrichment and consequential relief.

Issue 1: Erroneous payment of duty under Compounded Levy Scheme
The appellant, engaged in processing fabrics, erroneously paid duty for the entire month of September 2000 under the Compounded Levy Scheme, despite being required to pay duty only from 11.9.00 onwards when their Annual Production Capacity was fixed by the Commissioner.

Issue 2: Refund claim for excess duty paid
The appellant filed a refund claim for Rs.80,000 in respect of duty overpaid for the period up to 11.9.00. The Assistant Collector allowed the refund but ordered it to be credited to the Consumer Welfare Fund. On appeal, the Commissioner(Appeals) allowed the refund, stating that duty was not required to be paid for the period from 1.9.00 to 6.9.00 as there was no production or clearance during that time.

Issue 3: Recovery of erroneously refunded amount under Section 11A of Central Excise Act
Subsequently, fresh proceedings were initiated against the appellant to recover the erroneously refunded amount of Rs.80,000 under Section 11A of the Central Excise Act. The Assistant Commissioner and Commissioner(Appeals) confirmed the demand, citing lack of proof of unjust enrichment by the appellant.

Issue 4: Unjust enrichment and consequential relief
The Tribunal noted that the issue of unjust enrichment had already been decided in favor of the appellant by the Commissioner(Appeals) in a previous order. The subsequent grant of refund was considered a consequential relief. The Tribunal held that since the earlier order had not been challenged by the Revenue and had attained finality, it was not permissible for the department to initiate proceedings again on the same issue. Additionally, the Tribunal found merit in the appellant's argument that as there was no production or duty paid for the period in question, the question of recovery from customers did not arise. Therefore, the impugned order was set aside, and the appeal was allowed in favor of the appellant with consequential relief.