2009 (7) TMI 1011 - AT - Central Excise

Summary

Issues involved: Appeal against Commissioner (Appeals) order, pre-deposit compliance, credit in PLA, procedural error in taking credit, interpretation of Section 11B and unjust enrichment.

The appeal relates to a case where the appellant complied with the pre-deposit order u/s 35F and subsequently, the Commissioner (Appeals) allowed the appeal with consequential relief. The appellant took credit in PLA based on TR 6 challan, which was earlier made as pre-deposit. The Department advised the appellant to file a letter for refund, but the appellant took credit before that. The Commissioner (Appeals) held that the suo motu credit was erroneous based on a previous CESTAT decision. The appellant argued that they understood the order as permission to take credit and that Section 11B and unjust enrichment do not apply. The appellant sought to set aside the Commissioner (Appeals) order and restore the original authority's order.

The appellant's advocate cited various Tribunal decisions to support their argument. The Department reiterated the Commissioner (Appeals)' findings. The Tribunal noted that the appellant was eligible for the return of the pre-deposit amount and that the Department's instructions required a simple letter for refund. Despite the appellant filing a letter, they took credit before receiving cash refund. The Tribunal found the procedural error but held that demanding duty along with interest was unwarranted in this case. While acknowledging the procedural violation, the Tribunal decided to allow the appeal and restore the original authority's order, considering the Department's obligation to implement the earlier order of the Commissioner (Appeals).

Separate Judgement: None