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TMI Blog2008 (3) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... d I. Mahanty, J. Shri J.K. Misra, ASG,for the Appellant. S/Shri S.K. Mohanty and J. Mohanty, for the Respondent. [Judgment per: A.K. Ganguly, C.J.]. - This is an appeal at the instance of the Commissioner of Central Excise, Customs Service Tax, Bhubaneswar-1 challenging an order dated 25-6-2007 passed by the Customs, Excise Service Tax Appellate Tribunal (hereinafter referred to as the 'said Tribunal') whereby the said Tribunal directed refund of excise duty amounting to "Rs. 2,12,32,684/- which has been credited to the Consumer Welfare Fund. While passing the said order, the learned Tribunal came to a finding, that the respondent M/s. Paradeep Phosphates Limited cannot be said to be guilty of 'unjust enrichment', so th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundable to the respondent. However, in the said order the Deputy Commissioner directed the said amount of refund to be credited to the Consumer Welfare Fund established under Section 12C of the Central Excise Act, 1944. 4. Being aggrieved by the said order dated 31-8-2001, the respondent preferred an appeal before the Commissioner of Customs (Appeals). The said appeal of the respondent was rejected by the appellate authority on 23-7-2002. Being aggrieved by the said order dated 23-7-2002 passed by the Commissioner of Customs (Appeals), the respondent filed further appeal before the said Tribunal, Kolkata. The said appeal was disposed of by an order of the said Tribunal dated 23-4-2004, by setting aside the impugned order and by remanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Customs Act, during the period in question and the Tribunal allowed the appeal and directed the original authority to withdraw the sanctioned refund amount from the Consumer Welfare Fund and to pay the same to the respondent. 6. In the instant appeal which has been filed before this Court by the appellant two questions of law have been urged. They are as follows: (A) Whether the CESTAT's order directing to settle the pending refund matters arising out of finalization of provisional assessments with out taking into account the Doctrine of unjust enrichment, ignoring the amended provisions of Section 18(5) of Customs Act, 1962 which was made effective on 13-7-2006 is correct in law? (B) Whether the CESTAT's order directing to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund in 2001 which is much prior to the date of amendment i.e. 13-7-2006. The said order is as follows:- "In view of my findings above, I do hereby sanction refund of duty amounting to Rs. 2,12,32,684.00 (Rupees two crore twelve lakh thirty two thousand and six hundred eighty four only) as hereunder and order for crediting of the same to the Consumer Welfare Fund established under Section 12C of Central Excises Salt Act, 1944 (now Central Excise Act, 1944)." 9. It appears that under the un-amended provisions of Section 18, no obligation is cast on the respondents to prove with documentary evidence that duty has not been passed on to the ultimate customers. Reference in this connection may be made to the judgment of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of refund under 9B and 11B is that under 9B(5), it is the authority who upon final assessment of the provisional duty passes an order in the question whether the duty provisionally paid is deficient or in excess. In a case where it is in excess, it passes an order entitling the assessee to the refund. In such a case, there is no question of unjust enrichment. 10. Reference in this connection may also be made to the decision of the Commissioner v. Oriental Exports , reported in 2006 (200) E.L.T. A138 (S.C.). In the said judgment, learned Judges have noted that the decision of the Supreme Court in the case of Commissioner of Central Excise v. TVS Suzuki , 2003 (156) E.L.T. 161 (S.C.) = 2003 (7) SCC 24, it has been held by a three Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is entitled to refund. Therefore, the respondent's case stands on a different footing. 12. For the reasons aforesaid, this Court holds that there is no merit in the appeal filed by the Revenue and both the questions are answered against the Revenue and in favour of the respondent. 13. The respondent must be paid the said refund amount along with interest forthwith and definitely within a period of four weeks from the date of service of this order by the appellant. In default, the appellant is to pay interest at the rate of 10% on the amount to be calculated on the expiry of the said four weeks till the date of actual payment. The order passed by the Customs, Excise Service Tax Appellate Tribunal dated 25-6-2007 is confirmed. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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