2014 (4) TMI 419 - AT - Central Excise

Refund of amount deposited before filing an appeal before Commissioner (appeals) as per order in original after getting favorable decision - unjust enrichment - Repacking of Zinc sulphate from bulk to retail - With the budget changes with effect from 1.1.2007, such an activity of repacking from bulk to repair was deemed to be a manufacturing activity - Held that - The fact of filing of appeal before higher appellate forum itself amounts to lodging of protest. If the law requires an assessee to deposit amount in question before going in appeal, against the orders confirming such demands and after lawful citizen abide the said dictate of law, he cannot be deprived of his rights to get back the said deposited amount on success of his appeal. The entire idea of filing an appeal gets defeated if the litigant is not allowed to avail or retain the fruit of such litigation. It is well settled law that neither the provisions of limitation nor the provisions of unjust enrichment would be applicable to the amounts of pre-deposit - The fact whether such payments were made pre-adjudication or post adjudication will not change the nature or character of said deposits - Decided in favour assessee.

Summary

Issues:
1. Whether repacking of Zinc sulphate from bulk to retail amounts to a manufacturing activity subject to Central Excise duty.
2. Appropriation of deposited duty, imposition of penalty, and confirmation of interest.
3. Refund claim of duty, interest, and penalty by the appellant.
4. Appeal against the rejection of refund by the Revenue.
5. Undue enrichment of the appellant due to duty deposits.

Analysis:

Issue 1:
The appellant was engaged in repacking Zinc sulphate, which was deemed a manufacturing activity post-budget changes. Despite not paying duty initially, they later paid Rs.7,69,512/- following departmental intervention. The Commissioner (Appeals) allowed the appeal based on a government notification, relieving the appellant from duty liability.

Issue 2:
Subsequent proceedings initiated against the appellant resulted in confirmation of duty demand, penalty imposition, and interest confirmation. The appellant deposited interest and 25% of the penalty within the stipulated period. The Deputy Commissioner sanctioned the refund claim of duty, interest, and 25% of the penalty deposited by the appellant.

Issue 3:
The appellant filed a refund application post the Commissioner (Appeals) decision. The Deputy Commissioner sanctioned the refund claim of duty, interest, and 25% of the penalty deposited by the appellant. However, the Revenue appealed against this decision, arguing that the appellant was unduly enriched as the duty was recovered from customers.

Issue 4:
The Revenue appealed against the Deputy Commissioner's order, contending that the appellant failed to prove that the duty deposits were not recovered from customers. The Commissioner (Appeals) sided with the Revenue, setting aside the order and disallowing the refund.

Issue 5:
The Tribunal found that the duty deposits were made based on Revenue's directions and were related to the duty clearance during the period in question. The appellant complied with the law by depositing the confirmed dues before appealing. The Tribunal emphasized that the appellant should not be deprived of the deposited amount upon appeal success, as it defeats the purpose of litigation. The Tribunal rejected the Revenue's argument of undue enrichment and reinstated the original authority's order, emphasizing that the nature of the deposits remains unchanged regardless of when they were made.

This judgment clarifies the liability of the appellant regarding Central Excise duty, the process of refund claims, and the legal implications of duty deposits in appellate proceedings.