2017 (1) TMI 538 - AT - Central Excise

Refund - N No.108/95-CE - Unjust enrichment - Held that - In my view, even if different name is there in the certificate and difference of name is only due to name change of the company, the same certificate should have been accepted by the department on the basis of the ROC certificate which certifies the change of name of the company - The discrepancy raised by the Assistant Commissioner is rectified and revised certificate was submitted wherein the appellant name is correctly mentioned. In this fact the appellant was very much entitled for the exemption notification and the duty paid by them is legally refundable. As regard unjust enrichment it is an admitted fact that no documentary evidences were submitted by the appellant before the lower authority. However it appears from the nature of supplies and the certificate issued by the project authority that duty is not payable on the consignment - Needless to say that appellant should be given sufficient opportunity of personal hearing and for submission of the documents as required with regard to the aspect of unjust enrichment. The original adjudicating authority is expected to pass a de novo adjudication order within a period of three months from the date of this order - Appeal allowed by way of remand.

Issues:
1. Claim of exemption Notification No.108/95-CE at the time of clearance of goods.
2. Rejection of refund claim by the original authority.
3. Allegation of unjust enrichment.
4. Absence of documentary evidence before the lower authority.
5. Remand of the matter to the original adjudicating authority for verification of facts on unjust enrichment.

Analysis:

1. The appellant supplied goods to a project covered under exemption Notification No.108/95-CE but faced rejection of exemption due to a discrepancy in the certificate issued by the project authority. The Assistant Commissioner denied the exemption as the certificate was not in the appellant's name. However, the appellant later obtained a revised certificate with the correct name, making them eligible for the exemption. The duty paid by the appellant was deemed refundable as per the correct certificate. The claim of exemption was made before the clearance of goods, fulfilling the requirement under the notification.

2. The refund claim of the duty paid at the time of clearance was rejected by the original authority on the grounds that the appellant did not claim the exemption Notification No.108/95-CE during clearance and failed to prove that the duty incidence was not passed on to another party. The appellant appealed this decision, leading to the current judgment.

3. The appellant argued against unjust enrichment, stating that the project authority understood the supplies were under the exemption Notification No.108/95-CE, and thus, no duty payment or reimbursement was necessary. The appellant contended that the duty amount was not passed on as the project authority did not pay it. However, the lack of documentary evidence on this aspect led to the rejection of the refund claim based on unjust enrichment.

4. The Revenue maintained its stance, emphasizing that since the appellant did not claim the exemption at the time of clearance, they were not entitled to a refund of the duty paid. The Revenue also pointed out the absence of documentary evidence supporting the appellant's claim regarding unjust enrichment, which further strengthened their argument against the refund.

5. The judgment set aside the impugned order and remanded the matter to the original adjudicating authority for verification of facts related to unjust enrichment. The appellant was granted the opportunity for a personal hearing and to submit the necessary documents. The original authority was directed to issue a new adjudication order within three months from the date of the judgment, allowing the appeal by way of remand for further examination of the unjust enrichment aspect.

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