2017 (9) TMI 610 - AT - Central Excise

Unjust enrichment - Refund claim of excess duty paid - rejection on the ground that the appellant has not opted for provisional assessment during the impugned period - Whether the appellant has been able to discharge their burden of unjust enrichment or not? - Held that - Revenue has not produced any contrary evidence to show that the buying unit has taken cenvat credit of excess duty paid by the appellant. The allegation of the Revenue is only based on presumptions and assumptions which is not sustainable in law - benefit of doubt goes in favor of the appellant as per the undertaking filed by buying unit - the appellant has been able to discharge their burden of unjust enrichment and is entitled to refund claim in question. Whether the appellant was required to opt for provisional assessment or not? - Held that - the appellant has approached for a permission for provisional assessment under Rule 7 of Central Excise Rules, 2002 for the financial year 2005-06, the said request was rejected. In that circumstances, it cannot be said that the appellant has not applied for provisional assessment. The appellant is entitled for refund claim - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the appellant has been able to discharge their burden of unjust enrichment or not.
2. Whether the appellant was required to opt for provisional assessment or not.

Analysis:

Issue No. (i)
The appellant in this case produced certificates from the buying unit and a Chartered Accountant stating that the buying unit did not take cenvat credit on the excess duty paid by the appellant. The appellant also requested the jurisdictional Range of Central Excise to certify this fact, with some reports confirming the same. The tribunal found that the appellant had successfully discharged the burden of unjust enrichment. The Revenue failed to provide any evidence contradicting the appellant's claim, relying only on presumptions and assumptions, which are legally unsustainable. Consequently, the tribunal ruled in favor of the appellant, granting them the refund claim.

Issue No. (ii)
Regarding the requirement for provisional assessment, the appellant had applied for permission under Rule 7 of the Central Excise Rules, 2002 for the financial year 2005-06, but the request was rejected. The tribunal noted that the Revenue itself had previously denied the appellant permission for provisional assessment for an earlier period. Therefore, the tribunal rejected the Revenue's argument that the appellant should have opted for provisional assessment during the impugned period, as it was not feasible due to the rejection of the appellant's request. The tribunal found no merit in the Revenue's argument and dismissed it.

In conclusion, the tribunal held that the appellant had met the conditions for a refund claim and allowed the appeals with consequential relief.