2018 (11) TMI 1194 - AT - Central Excise

N/N. 116/1969-CE dated 03.05.1969 for the period 1982-85 - eligibility of the product Darzamol injection I.V. - Held that - What is not in dispute is that the Commissioner of Central Excise (Appeals) had set aside demand proposed against the appellant. It is also evident that no appeal was preferred by the department against this order and hence the same can be said to have attained finality for the department. This being so, as per sub-clause (ec) of clause (B) of Explanation to Section 11B of the Central Excise Act,1944, the duty has become refundable as a consequence of the order of the said appellate authority. We are unable to fathom the reasoning for rejection of the refund claim by the lower authorities only on extraneous and frivolous legal ground namely, assessee paid the duty voluntarily in three stages - appeal allowed.

Summary

Issues:
Dispute over eligibility of product under Notification No. 116/1969-CE for the period 1982-85, duty demand without SCN, rejection of refund claim based on voluntary duty payment.

Analysis:
The case involved a dispute between M/s. Sun Pharmaceuticals Industries Ltd. and the department regarding the eligibility of their product 'Darzamol' injection I.V. under Notification No. 116/1969-CE for the period 1982-85. The matter went through various forums and was remanded to the Commissioner (Appeals) for fresh consideration. The Commissioner (Appeals) in OIA No. 73/2008 held that the duty demand made by the Asst. Commissioner without issuing a Show Cause Notice (SCN) was incorrect, rendering the demand unsustainable ab initio. Subsequently, the appellant filed a refund claim, which was denied by the competent authority in an order dated 26.08.09, citing that the duty was paid voluntarily in three stages and referring to a Supreme Court order in CA 2123-2124/94. The Commissioner (Appeals) in the impugned order No. 15/2011 upheld the original authority's decision, leading to the appellant's appeal before the tribunal.

During the hearing, the appellant's advocate highlighted that the Commissioner (Appeals) order setting aside the demand had attained finality as no appeal was filed by the department against it. Therefore, the refund claim should not be denied solely based on the voluntary duty payments made earlier. On the other hand, the department's representative argued that the Commissioner (Appeals) order only set aside the demand due to the lack of a proper SCN and supported the impugned order rejecting the refund claim.

After considering both arguments and reviewing the facts, the tribunal noted that the Commissioner of Central Excise (Appeals) had indeed set aside the demand against the appellant in the earlier order, which had not been challenged by the department. As a result, the duty became refundable as per the relevant provisions of the Central Excise Act, 1944. The tribunal found it unreasonable for the lower authorities to reject the refund claim based solely on the grounds of voluntary duty payments made in three stages, especially after accepting the earlier order setting aside the demand. Consequently, the tribunal set aside the impugned order and allowed the appeal, granting consequential benefits to the appellant as per the law.

In conclusion, the tribunal's decision emphasized the importance of upholding final orders and ensuring that refund claims are not denied arbitrarily, especially when the underlying demand has been set aside by the appellate authority. The judgment provided relief to the appellant after a prolonged legal battle and highlighted the need for proper adherence to legal procedures in such matters.