2011 (2) TMI 1065 - AT - Central Excise

Refund claim - assessee is a 100% EOU - lower authority had directed the appellant to deposit the amount of differential duty which was deposited under protest . Subsequently, the appellant felt that the amount which had been paid by them should not have been paid and sought refund of the same which was rejected on the ground that the duty paid is not under protest and the amount paid is customs duty - Held that - TR-6 challan indicates that the duty has been paid under protest, appellant has not been able to provide evidence regarding the non-passing of the incidence of the duty to their customers. The learned Counsel submits that the appellant had exported almost 70% of the goods as finished goods, order is set aside and the matter is remitted back to the adjudicating authority to reconsider the issue afresh for sanctioning the refund claim, Appeal is allowed by way of remand

Summary

Issues:
1. Whether the appellant paid the amount as central excise duty or customs duty.
2. Whether the appellant's claim for refund was rightly rejected.
3. Whether the appellant provided sufficient evidence regarding unjust enrichment.
4. Whether the rejection of the refund claim was appropriate based on the nature of the duty paid.

Detailed Analysis:
1. The main issue in this case was whether the appellant paid the amount as central excise duty or customs duty. The appellant contended that the duty paid was central excise duty, paid under protest, while the department argued that it was customs duty. The Tribunal examined the documents, including the TR-6 challan and the letter from the Superintendent of Central Excise, and concluded that the duty was paid as central excise duty, as indicated by the covering letter to the challan and the protest stamp on the challan.

2. The next issue was whether the appellant's claim for refund was rightly rejected. The appellant sought a refund of the duty paid, claiming it was central excise duty and not customs duty. The department rejected the refund claim, stating that the appellant incorrectly applied for a refund of customs duty using Form R instead of the appropriate procedure for central excise duty. The Tribunal found that the rejection was based on an erroneous application by the appellant and remitted the matter back to the adjudicating authority for reconsideration.

3. Regarding the issue of unjust enrichment, the appellant argued that they had exported a significant portion of the goods and should not be liable to pay duty on those goods. The appellant submitted a Cost Accountant's certificate to support their claim of unjust enrichment. However, the Tribunal found the certificate to be vague and lacking specific details on the records checked by the certifying Chartered Accountant. The Tribunal emphasized the importance of providing clear evidence to support claims of unjust enrichment.

4. Lastly, the Tribunal addressed the rejection of the refund claim based on the nature of the duty paid. The department argued that duties under the Customs Act and Central Excise Act are independent and should be dealt with separately. The Tribunal considered the arguments from both sides and concluded that the rejection of the refund claim was not appropriate, given the nature of the duty paid as central excise duty. The Tribunal set aside the impugned order and remitted the matter back to the adjudicating authority for a fresh consideration following the principles of natural justice.