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2023 (12) TMI 41 - AT - Central ExciseRecovery of CENVAT Credit availed wrongly - Credit for exempted / non-dutiable products - Refund of duty paid under protest - - refund order challenged on the ground that adjudicating authority had not verified whether the refund was clear from principle of unjust enrichment - HELD THAT - The Tribunal had remanded the matter for the limited purpose of satisfying the Deputy Commissioner on the requirements of Rule 10(3) and as also to quantify the demand after considering the appellant s payment of an amount @ 6% of the price of PMB. In this context, it is noted that the adjudicating authority has not given the benefit of the duty paid at the time of removal of PMB amounting to Rs.60,89,453/-. There is no dispute that the appellant had paid the duty of Rs.60,89,453/- which has not been objected to by the Department during the relevant time. Therefore, the appellant cannot be denied the adjustment of this duty paid against the amount liable to be reversed - the Commissioner had erred in denying the adjustment of ₹60,89,453/- against the demand for the period September 2012 to November 2012. - After adjusting the amount already reversed, balance of the demand confirmed. Penalty on appellant - HELD THAT - The appellant were regularly availing credit and paying duty on the final product, even after it was held that the said process did not amount to manufacture. The department did not raise any dispute or the fact that the appellant was choosing to pay the duty on a product, not exigible to excise duty. In such a scenario, it is not established that there was any intention of the appellant to evade duty or avail inadmissible credit. Therefore, no case has been made out by the adjudicating authority for levying penalty on the appellant, the same is set aside. Unjust enrichment - HELD THAT - The appellant vide their letter dated 31.07.2013 had clearly indicated that the said amount had been paid after utilising CENVAT credit under protest. It is also brought to our notice that the amount so deposited is recorded under the head other current asset in Schedule 14 of the Balance Sheet. This substantiates the contention of the appellant that they had not recovered this amount from the buyer of the product or any other person. It is found that in several decisions, it has been held that the principal unjust enrichment does not apply to cases where duty has been paid to protest - unjust enrichment does not apply to the refund claim in the impugned appeal. On this basis alone the impugned order is set aside. - Refund allowed. Appeal allowed in part.
Issues Involved:
1. Recovery of CENVAT credit and imposition of interest and penalty. 2. Refund claim and the principle of unjust enrichment. 3. Authority of the Commissioner (Appeals) to remand the matter. Summary: Issue 1: Recovery of CENVAT Credit and Imposition of Interest and Penalty The Tribunal examined the order-in-original dated 05.08.2020, which demanded the recovery of Rs. 4,41,29,475/- of CENVAT credit along with interest and a penalty of Rs. 15,00,000/-. The Tribunal had previously remanded the matter to verify whether the appellant had paid duty on PMB and not to reassess the CENVAT credit availed. The Tribunal found that the appellant had paid Rs. 60,89,453/- as duty, which should be adjusted against the credit demand. The Tribunal held that the appellant had not improperly availed or utilized the credit and set aside the penalty imposed, emphasizing that there was no intention to evade duty. Issue 2: Refund Claim and Principle of Unjust Enrichment The appellant's refund claim for Rs. 1,11,49,884/- was initially allowed, but the department challenged it on the grounds of unjust enrichment. The Commissioner (Appeals) remanded the matter for verification. The Tribunal noted that the refund amount was paid under protest and recorded as "other current asset" in the balance sheet, indicating that the appellant had not passed on the duty burden to any other party. The Tribunal referenced several judgments to support the position that unjust enrichment does not apply to amounts paid under protest and set aside the impugned order, allowing the refund claim. Issue 3: Authority of the Commissioner (Appeals) to Remand the Matter The Tribunal addressed the contention that the Commissioner (Appeals) exceeded their authority by remanding the matter, as per Section 35A of the Central Excise Act, 1944, which had been amended to withdraw the power to remand. The Tribunal cited the Supreme Court judgment in M/s MIL India and Board's Circular dated 18.02.2010, concluding that the Commissioner (Appeals) acted beyond their jurisdiction. Conclusion: 1. The adjustment of Rs. 60,89,453/- against the demand for the period September 2012 to November 2012 is allowed, and the remaining demand is upheld. 2. The penalty of Rs. 15,00,000/- imposed on the appellant is set aside. 3. The principle of unjust enrichment does not apply to the refund claim where duty was paid under protest, and the refund is allowed. The Tribunal modified the order-in-original to reflect these conclusions, partially allowing Appeal No. 50305 of 2021 and setting aside Order-in-Appeal No. 182(CRM)CE/JDR/2021, thus allowing Appeal No. 50554 of 2022.
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