9911796707
TMI Blog2018 (5) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) Whether the Honble CESTATs decision is correct in holding 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; and 2) Whether Honble CESTATs Final Order was correct in setting aside the impugned order in Appeal dated 30.08.2011 passed by the Appellate Authority and decided the case without discussing on the grounds put- forth and the case laws referred therein. The narration of facts, as is evident from the grounds of Appeal, discloses that the case has a chequered history and it has undergone various stages of litigation, though, in substance, the issue relates to the duty collected from the respondent (hereinafter be referred to as the assessee) on the medicaments manufactured by them for the period April 1985 to April 1991. Initially, the medicaments that are being manufactured by the assessee were assessed to duty, denying their claim for exemption, as the goods manufactured i.e. ayurvedic medicines attract duty. The assessee was unsuccessful before the appellate authorities and up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, they are ineligible to get refund in terms of Section 11(B2) of the Act. This order was the subject matter of Appeal before the CESTAT in Appeal No. E/Misc./177/2007 in E/1237/2001 which came to be allowed by final order dated 27.07.2007 and the matter was remanded to the Original Authority to examine whether the assessments made were all provisional and if so, the presumption that the duty has not been passed on to the customer is to be considered. The Tribunal also directed to examine the evidence produced before it to establish that the incidence of duty has not been passed on to the customers and that in case, the assessee is entitled to refund, the same should be considered and paid expeditiously along with interest as per law. On remand, the Assistant Commissioner, by his order dated 10.04.2008 once again, rejected the claim of the assessee for refund on the ground that the said claim was not substantiated and no material evidence was produced for consideration. The said order came to be challenged before the Appellate Commissioner, who allowed the Appeal vide order dated 30.09.2008, holding that the assessee was entitled for refund and remanded the matter to the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event, we are of the view that appellants are eligible for the refund of Rs. 2,86,39,117/- for the period 3/85 to 4/91 and 3/94 to 4/95 as prayed for in their appeal. 9. In the result, the impugned order is set aside and Appeal is allowed with consequential benefits, as per law. At the outset, it may be noted that from the facts summarized hereinabove, it is not clear whether the Appeal filed by the assessee insofar as the order of the Appellate Authority rejecting its claim is concerned is allowed or not or is it the Appeal filed by the Department against the order-in-original that has been allowed. However, on a careful reading of the orders of the CESTAT, one can make out 1) that the claim of the assessee came to be allowed by setting aside the order-in-original to the extent the same is against the assessee which came to be confirmed by the 1st Appellate Authority. In the order-in-original dated 30.11.2009, the claim of the assessee for refund of the duty collected for the period from 1985 to 26.04.1995 was allowed-in-part to the extent of Rs. 2,06,61,883/-, as against the original claim of Rs. 7 crores and odd. The Tribunal accepted the submission of the assessee that the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the appellant to substantiate or to controvert any of the findings recorded by the Tribunal. While the Tribunal was content with extracting its earlier orders and that of the lower authorities, to put a quietus to the controversy, we have perused the record placed before this Court. Before us, the reasons of the first Appellate Authority justifying rejection of the claim of the assessee have been converted into grounds in the present Appeal and the two substantial questions, as set out above, are raised. The scope of the appeal before this Court under Section 35-G of the 1944 Act is limited to the questions of law arising from the orders of the Tribunal and on the findings of fact, as recorded by the Tribunal. It is well-settled by a catena of judgments of the Supreme Court as well as this Court that the findings of fact as recorded by the Tribunal are final and the same have to be accepted as apparent on the face of the record and it is impermissible to delve into the facts by the High Court except in cases where a particular fact is disputed as perverse. In the absence of any question having been raised that a particular finding of fact is perverse, the High Court is du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Authority dated 30.06.2001). The order dated 30.09.2008 was the subject matter of Appeal before the CESTAT at the instance of the Department in Appeal No. E/938/2008 which came to be dismissed by its order dated 26.03.2009. Thus, what remains to be done by the Department was only quantification of the amount that is liable to be refunded consequent upon confirmation of the orders in Appeal by the Appellate Authority in its order dated 30.09.2008. In the process of quantification, the issues with respect to the justification and whether assessments have been completed or not were brought up and findings contrary thereto were recorded while restricting the claim of the assessee. These orders-in-original as confirmed by the 1st Appellate Authority were set aside by the Tribunal. The above narration from the material placed before this Court is made to put on record the method and manner in which the issue was dealt with from time to time, creating a mass of facts without adverting to the core issue viz., the applicability or otherwise of the amended Rule 9B in 1999 for the transactions prior to 1995 and particularly, in relation to the payments made under protest, on provisional ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
