2017 (3) TMI 502 - AT - Central Excise

Refund claim - unjust enrichment - differential duty paid in excess - refund claim filed on the ground that the CVD was payable at the rate of 30 Rs. Per square meter on goods namely Marble blocks instead of 16% advolram - Held that - the issue has already been settled in the Order-in-Original No. 33/JTC/CEX/2004 dated 16-8-2004 which was upheld by the Commissioner(Appeals) vide Order-in-Appeal No. P-II BKS/344/2005 dated 30-9-2005. Therefore the said order was binding on the adjudicating authority hence original order on merit does not suffer from any infirmity - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Refund claim for differential duty paid.
2. Justification for duty rate of ?30 per square meter.
3. Rejection of refund claim based on unjust enrichment.
4. Appeal against Order-in-Appeal No. PII/BKS/382/2005.
5. Contradictory prayers in the appeal.
6. Legality of the Order-in-Original dated 28-10-2004.
7. Binding nature of previous orders on the adjudicating authority.

Analysis:
1. The appellant filed a refund claim for excess duty paid, arguing that the Countervailing Duty (CVD) was payable at ?30 per square meter instead of 16% ad valorem on Marble blocks. The adjudicating authority supported the duty payment at ?30 per square meter based on a specific order. However, the claim was rejected due to unjust enrichment.

2. The appeal was made against the rejection of the department's appeal by the Commissioner(Appeals). The Revenue sought to set aside the Order-in-Appeal No. PII/BKS/382/2005 dated 24-10-2005, and uphold the Order-in-Original No. 33/JTC/CEX/2004 dated 16-8-2004. The Tribunal noted a discrepancy in the Revenue's prayer, as both orders were essentially being sought to be upheld.

3. The Tribunal found that the issue of duty rate had been settled in the Order-in-Original dated 16-8-2004, which was upheld by the Commissioner(Appeals). The rejection of the refund claim on the grounds of unjust enrichment was considered valid. The adjudicating authority was bound by the previous orders, and the original order on merit was deemed legally sound, leading to the dismissal of the Revenue's appeal.

4. The Tribunal concluded that the Revenue's appeal lacked merit, as the Commissioner(Appeals) had correctly upheld the Order-in-Original, and the rejection of the departmental appeal was legally justified. Therefore, the Revenue's appeal was dismissed, and the decision was pronounced in court on 10/02/2017.