2016 (3) TMI 304 - AT - Central Excise

Entitlement to refund - proof of incidence of refund amount - whether the appellant are entitle for the Cenvat Credit in respect of the service tax paid by the job worker? - Held that - As per the order dt. 30.7.2010 the appellant is entitled to take the credit. Thus the appellant is not required to pursue the refund application as they have been granted the relief under the said order dt. 30.7.2010 itself. The appellant have not taken the credit for the reason that they were pursuing this refund matter right from show cause notice stage till this appeal stage. The appellant is entitled to take the credit in terms of the adjudication order dt. 30.7.2010. Also hold that for the purpose of limitation in taking the credit, the period of litigation in the present case shall stand excluded. In view of my above observation, the present appeal is dismissed as withdrawn.

Summary

Issues:
1. Entitlement to Cenvat Credit for service tax paid by job worker.
2. Application of unjust enrichment in refund claim.

Analysis:
1. The appeal was filed against the Order-in-Appeal passed by the Commissioner of Central Excise (Appeals) Mumbai-III. The appellant, a manufacturer of motor vehicle components, got job work done from a job worker who paid service tax on heat treatment process. The department objected to the job worker's payment as exempted from service tax, leading the appellant to reverse the Cenvat credit. The department issued a show cause notice for disallowance of the credit, but later dropped the proceedings. The appellant also filed a refund claim for the reversed credit. The Commissioner (Appeals) held that the credit was admissible but dismissed the appeal on grounds of unjust enrichment. The appellant contended that the issue of credit admissibility was settled in an earlier order and sought re-credit without unjust enrichment implications.

2. The appellant argued that since the issue of Cenvat Credit admissibility was resolved in a previous order, unjust enrichment should not apply. They asserted that the burden of the service tax was borne by them as they paid job charges along with the service tax on the job worker. On the contrary, the Revenue contended that as the appellant filed a refund claim under Section 11B of the Central Excise Act, they must prove the absence of unjust enrichment. Since the appellant failed to demonstrate that the refund amount's incidence was not passed on to any other person, the Commissioner rightly dismissed the appeal based on unjust enrichment.

3. The Tribunal considered the submissions and found that the main issue of Cenvat Credit entitlement had been settled in the earlier adjudication order, granting the appellant the credit. Therefore, the Tribunal opined that pursuing the refund application was unnecessary as relief had already been granted in the previous order. The Tribunal held that the appellant was entitled to take the credit as per the adjudication order, and the period of litigation in the present case should be excluded for limitation purposes. Consequently, the Tribunal dismissed the present appeal as withdrawn, concluding that the appellant was entitled to the credit based on the previous order, and there was no need to pursue the refund claim further.