9911796707
TMI Blog2019 (10) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... peal allowed - decided in favor of appellant. - Excise Appeal No.52141 of 2019 (SM) - FINAL ORDER NO. 51371 OF 2019 - Dated:- 23-10-2019 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Manoj Swarup, Shri Abhishek Swarup And Ms. Lalita Kohli, Advocates for the appellant. Shri K. Poddar, Authorised Representative for the respondent ORDER ANIL CHOUDHARY: The present appeal has been filed by the appellant/assessee -Herbicides India Ltd., against the order-in-appeal rejecting their claim for grant of interest on the delayed refund and secondly, against the finding of the ld. Commissioner that the refund has been wrongly granted being, barred by limitation as well as also hit by unjust enrichment, thus, raising a demand for repayment of the refund granted (with interest). 2. The brief facts are that the appellant. - Herbicides India Ltd. (HIL) was manufacturing since 1992 the product under brand name ACHIEVER GRANULES (plant growth regulator) and was clearing the same under chapter sub-heading 3808.00 by paying applicable excise duty. 2.1 That during Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amount of demand (Rs.) Amount of Penalty Adjudication Order 4.4.2003 March 2002 to Nov. 2002 22,08,198 5,00,000/- under Rule 5 Order-in-Original No.70/2004 dated 20.01.2005 and order-in-appeal No.173(MPM) CE/JPR-I/2005 dated 24.06.2005. 20.01.2015 Oct 2004 to July 2005 41,33,291/- 8,00,000/- Order-in-Original No. 126-2005 dated 6.1.2006 and 125/2005 dated 20.12.2005. 3. Being aggrieved, the appellant preferred appeal before the ld. Commissioner (Appeals). By the order-in-appeal dated 24.06.2005, the Commissioner (Appeals) held the classification dispute in favour of the appellant /assessee holding that their product ACHIEVER Gold (plant growth regulator) Fertilizer is cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the refund claim, which was filed on 12.05.2017. Therefore, the refund claim appeared to be time barred as the same has been preferred after more than one year from the relevant date. It further appeared to Revenue that the appellant /assessee should have produced documentary evidence to establish that the burden of duty claimed as refund was not passed on by them to any other person. But from the impugned order, it appeared that the Adjudicating Authority did not examine the issue of unjust enrichment. The Commissioner (Appeals) was pleased to allow both the grounds in favour of the Revenue, allowing the appeal, after issue of notice to the respondent/assessee dated 26.11.2018 requiring them to show cause with evidence on both the issues. 7. The appellant had filed reply to the show cause notice issued by the Commissioner (Appeals) on 22.12.2018, explaining that the appellant had paid duty under protest, thus, on this score alone, there would be no time limit in claiming the refund. Secondly, even after passing of the order-in-appeal dated 24.06.2005 in their favour by the Commissioner (Appeals), the Department continued to issue show cause notices demanding payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11 BB/35 FF, which was rejected, by common order-in-appeal. 10. The appellant preferred appeal before this Tribunal. 11. Heard the parties. 12. Ld. Counsel for the appellant has argued that it is an admitted fact that the appellant has not charged duty in the invoices on the goods cleared. Further, the admitted fact is that the appellant had informed the Revenue about the classification being adopted, along with details of their product, attracting nil rate of duty. Further, upon demand of duty by Revenue and issue of show cause notice, the appellant paid the duty under protest. Pursuant to confirmation of duty vide order-in-original, the appellant immediately preferred appeals before the Commissioner (Appeals, on the issue of challenging the change in classification by the Revenue demanding duty. Further, in spite of the fact that the appellant was successful in appeal before the Commissioner (Appeals) in June, 2005, Revenue chose to issue further periodical notices till June, 2015 i.e. nearly for about 10 years pending the decision of the Revenue s appeal before this Tribunal. Thus, in view of the stand of the Revenue, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the same in the impugned order, and as to why the same is not found acceptable. Thus, the impugned order is cryptic and suffers from violation of principles of natural justice. Further, no case of unjust enrichment is made out against the appellant/assessee and only on the bald allegations of lack of examination by the Adjudicating Authority, the refund has been disallowed. Further, he urges that the refund claimed is not time barred under the facts and circumstances. Accordingly, he prays for allowing the appeal with appropriate relief i.e. grant of interest on the refund amount. 14. Ld. Authorised Representative for the Revenue has relied upon the order of the Commissioner (Appeals). 15. Having considered the rival contentions, after examining the facts on record, it is evident that the appellant/assessee has not charged duty from the buyers of their goods, nor issued any debit notes subsequently nor have issued any supplementary bill. Thus, there is no way by which the appellant could have collected any amount subsequently. The said facts are supported by the various evidences led by them before the court below i.e. copy of invoices, balance shee ..... 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