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TMI Blog2018 (5) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to the amended provision came into existence, was rejected holding that the operation of sub-rule (5) of Rule 9B was not retrospective. Appeal dismissed - decided against appellant-Revenue. - C.E.A. No. 155 of 2017 - - - Dated:- 13-4-2018 - SRI C.V. NAGARJUNA REDDY AND SRI CHALLA KODANDA RAM JJ. Counsel for the Appellant: Sri Swaroop Orilla for Sri M.V.J.K. Kumar, Senior Standing Counsel For Central Excise, Customs Service Tax Counsel for the respondent: GIST: J U D G M E N T: (per Honble Sri Justice Challa Kodanda Ram) Heard Mr. Swaroop Orilla, appearing on behalf of Mr. M.V.J.K. Kumar, learned Senior Standing Counsel for Central Excise, Customs and Service Tax and Mr. K. Raji Reddy, learned counsel for the respondent. This Appeal by the Revenue, invoking Section 35-G of the Central Excise Act, 1944 (for short, the Act), challenges the final order No. A/30782/2016, dated 03.08.2016 in Appeal No. E/964/2012 on the file of the Central Excise and Service Tax Appellate Tribunal (CESTAT), Regional Bench, Hyderabad. In this Appeal, two substantial questions of law have been raised: 1) Whether the Honble CESTATs decision is correct in holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the undertaking given by the assessee not to claim interest because of the delay that might be caused due to remand of the matter. Thereafter, once again, the Assistant Commissioner, by order dated 10.03.1997, rejected the claim of the assessee holding that: ................ The assessees have submitted all the documents except documentary evidence to prove that excise duty paid was not passed on to any other person. The assessees have not produced the relevant and necessary documentary evidence to process their refund claim Section 11B clearly stipulated that a refund applications should be accompanied by all the relevant including the documentary evidence to prove that excise duty paid was not passed on to any other person. In absence of above documentary evidence, the claim is unsubstantiated under the provisions of Section 11B of Central Excise Act, 1944 and the same is liable for rejection as an unsubstantial claim. Feeling aggrieved, the assessee appealed to the Appellate Commissioner, who, by order, dated 13.06.2001, rejected its claim, as the fact that the incidence of duty has been passed on to the buyers is not in dispute, and that thus, they are ineligible to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque dated 30.11.2009. Thus, in effect, the assessees claim for refund for the period from March 1994 to April 1995 was held not legal and proper. However, the assessee had filed Appeals against both the orders passed by the Appellate Commissioner. While disposing of the appeals, the CESTAT, in its order, dated 03.08.2016, had held as under: 7. In the circumstances, the view taken by the lower appellate authority in the impugned order upholding original authoritys decision to reject the refund for the period 4/1985 to 03/1991 for want of relevant records and for non-production of proof that assessments were finalized prior to 26.05.1999; and for the period 3/84 to 4/91 for want of all relevant documents evidencing payment of duty is not just and proper. 8. In the light of the discussions above and also reiterating the findings in the Tribunals earlier order 882/2009 dated 26.03.2009, we are of the considered opinion that refund arising out of the finalization of provisional assessments during the period February 1985 to April 1995 need not pass the test of unjust enrichment as the amendment to sub-rule 5 of Rule 9B came into force only w.e.f. 25.06.1999. In the event, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and thereby, Rule 9B(5) of the Central Excise Rules, 1944 as settled by the Supreme Court in the case of TVS Suzuki Limited (cited supra) does not arise; 4) and that the first Appellate Authority failed to appreciate the specific contention that in the light of assessments for the period 1991-92 having been, admittedly, finalized before 25.06.1999, it is but logical that the assessment for the earlier period also be treated as finalized. The reasoning given by the first Appellate Authority, without verification of the record and merely recording that the assessee had failed to produce proof of assessments being finalized prior to 25.06.1999 is not proper and correct and is done only with bias. At any rate, the finalization of assessment is the responsibility of the Department and its failure to do so cannot be put against the assessee. As can be seen from the material on record, the above contentions practically do not appear to have been controverted by the appellant before the Tribunal. Adverting to the earlier proceedings between the parties, the Tribunal had concluded that, the grounds raised by the appellant are unsubstantiated. The material on record does not disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection for refund was made on 10.03.1997 was that the assessee had failed to substantiate and prove that excise duty paid was not passed on to any other person, and also failed to satisfy the conditions laid down under Section 11B of the 1944 Act. The first Appellate Authority vide its order dated 13.06.2001, confirmed the same, which was set aside by the Tribunal by its order dated 07.08.2007 with a direction to quantify the refund amount payable. In other words, what remained to be considered is only quantification of refund, but unfortunately, once again, the claim for refund was rejected by order dated 10.04.2008, which was again set aside by the 1st Appellate Authority vide order dated 30.09.2008. It may be noted, at this stage, that the 1 st Appellate Authority in its order dated 30.09.2008 having taken note of the judgment of the Supreme Court in TVS Suzuki Limited, had categorically held that the doctrine of unjust enrichment and the provisions of amended Rule 9B of the Central Excise Rules are not applicable to the assessees case notwithstanding the fact that the assessee had admitted that the incidence of duty has been passed on to the customers (the said aspect was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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