2015 (11) TMI 831 - AT - Central Excise

Denial of refund claim - Unjust enrichment - duty of excise was paid under compound levy scheme Held that - As regard the applicability of unjust enrichment following the ratio of the Larger Bench decision in the case of Shivagrico Implements Ltd.(2006 (4) TMI 5 - CESTAT NEW DELHI) I am of the considered view that unjust enrichment is applicable even in case of refund of duty paid under compound levy scheme. From Section 11B also it can be seen that Section 11B covers refund of any duty of excise therefore duty paid under compound levy scheme is also governed by the Section 11B of Central Excise Act 1944. As regard Ld. Counsel s submission that the order was passed exparte I find force in his argument and found that either hearing notice was not received by the appellant or it was delivered after the date of hearing. In view of this position it is fit case for remand. I therefore remand the matter to the original adjudicating authority who shall disposed of the matter within a period of three months from the date of receipt of this order. Appellant has to produce necessary documents/evidence to prove that incidence of refund amount has not been passed on to any other person. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
- Appeal against Order-in-Appeal allowing Revenue's appeal and setting aside refund order
- Applicability of unjust enrichment in case of refund under compound levy scheme
- Ex parte order due to hearing notice issues

Analysis:
1. The appeal was filed against an Order-in-Appeal that allowed the Revenue's appeal and set aside the refund order. The appellant had paid excise duty under protest under the compound levy scheme and claimed a refund. The original authority sanctioned the refund along with interest, but the Revenue appealed on the grounds of unjust enrichment. The Commissioner (Appeals) allowed the appeal, leading to the current appeal.

2. The appellant argued that unjust enrichment should not apply as the refund was due to an excess payment of duty under the compound levy scheme. Citing a Supreme Court decision and the comprehensive nature of the compound levy scheme, the appellant contended that unjust enrichment provisions should not be applicable. The appellant also highlighted issues with receiving hearing notices, resulting in an ex parte order.

3. The Revenue, represented by the Assistant Commissioner, supported the findings of the impugned order and referred to a Tribunal decision establishing the applicability of unjust enrichment in cases of duty refund under the compound levy scheme.

4. After considering both sides' arguments and reviewing the records, the Member (Judicial) opined that unjust enrichment is applicable even in cases of duty refund under the compound levy scheme. Referring to Section 11B of the Central Excise Act, the Member concluded that duty paid under the compound levy scheme falls under the purview of Section 11B. Acknowledging the issues with the hearing notices, the Member deemed it a fit case for remand. The matter was remanded to the original adjudicating authority with a directive to dispose of it within three months. The appellant was instructed to provide evidence that the refund amount's incidence had not been passed on to any other person.

5. The judgment emphasized the importance of granting the appellant a personal hearing with sufficient notice in any future proceedings related to the case. The appeal was remanded accordingly, and the stay application was disposed of.

This detailed analysis of the judgment provides a comprehensive overview of the issues involved and the Member's reasoning behind the decision, preserving the legal terminology and key points from the original text.