2008 (1) TMI 57 - AT - Central Excise

Tribunal sanctioned refund not looking in fact of unjust enrichment- applicant instead of filing an appeal against the order of the Asstt. Comm. of denying refund, has chosen to file the present application for implementation of the Tribunal s order - Tribunal cannot deal with the orders passed by the Asstt. Commissioner, unless the same are in defiance to the directions of the Tribunal s order impugned application rejected

Summary

Issues:
Implementation of Tribunal's order for refund claimed by the appellant.

Analysis:
The judgment pertains to the implementation of a Tribunal's order allowing an appeal filed by the applicant with consequential relief for refund. The Assistant Commissioner, while holding that the refund claimed is sanctionable in terms of the Tribunal's order, credited the amount to the Consumer Welfare Fund due to the assumption that the burden of duty was passed on to the buyer. The applicant did not appeal this decision but filed a miscellaneous application for implementation of the Tribunal's order. The Tribunal noted that the refund claimed must pass the test of unjust enrichment as per Section 11B of the Central Excise Act, 1944. The issue of unjust enrichment was not raised before the Tribunal but was examined by the Assistant Commissioner for the first time. The Tribunal emphasized that it cannot deal with orders passed by the Assistant Commissioner unless they are in defiance of the Tribunal's directions. The Tribunal found no justification to set aside the Assistant Commissioner's order and advised the applicant to approach the appellate forum under the law.

The learned Advocate cited a Tribunal's order in a different case to support the argument that the Assistant Commissioner's order can be directly set aside by the Tribunal. However, the Tribunal differentiated the facts and circumstances of that case from the present one. In the cited case, the Assistant Commissioner did not follow the Tribunal's directives and instead delved into the issue of unjust enrichment, which was not raised before the Tribunal. In contrast, in the present case, there were no arguments or issues regarding unjust enrichment before the Tribunal. The Tribunal highlighted that the Assistant Commissioner's rejection of the refund claim based on unjust enrichment was in line with the provisions of Section 11B and the Tribunal's earlier order did not specifically direct against considering unjust enrichment. Therefore, the Tribunal concluded that the Assistant Commissioner had implemented the Tribunal's order, and there was no basis to set aside the Assistant Commissioner's decision.

In conclusion, the Tribunal rejected the application for implementation of the refund claimed by the appellant, emphasizing that the Assistant Commissioner's decision was in accordance with the law and the Tribunal's directives. The judgment underscores the importance of following legal procedures and addressing issues within the appropriate forums as per the law.