9911796707
Advanced Search 
TMI Blog2023 (8) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... d levy scheme is to be treated as excess deposit. It is further observed that the Hon'ble Supreme Court in the case of Shri Bhagwati Steel Rolling Mills vs Commissioner of C. Ex [2015 (326) ELT 209 (SC)], inter alia, held at para 30 to 31, as under. 30. On merits, the matter is no longer res integra. A Constitution Bench decision of this Court in VVS Sugars v. Government of A.P., 1999 (4) SCC 192, has held, following two earlier judgments of this Court, as follows :- "This Court in India Carbon Ltd. v. State of Assam [(1997) 6 SCC 479] has held, after analysing the Constitution Bench judgment in J.K. Synthetics Ltd. v. CTO [(1994) 4 SCC 276] that interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf. There being no substantive provision in the Act for the levy of interest on arrears of tax that applied to purchases of sugarcane made subsequent to the date of commencement of the amending Act, no interest thereon could be so levied, based on the application of the said Rule 45 or otherwise." 31. Applying the Constitution Bench decision stated above, it will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Act and are bound its provisions. 4.4 Thus, when general provisions of teh Central Excise Act, 19444 are not applicable and there is no provision for payment of interest on refund under compounded levy scheme, I find that the adjudicating Authority created & functioning under the Central Excise Act, 1944, could not have allowed inertest on refund. Even otherwise, if the general provisions of the Central Excise Act, 1944 are applied, there is no delay in sanctioning the refund, as the refund has been allowed on 19.03.2019 which is within three months of the date of the letter dated 10.01.2019 of the appellant filed along with the aforesaid Final Order dated 07.08.2018 of the Hon'ble Tribunal. 4.5 I also find that the Hon'ble Supreme Court in the case of Commissioner of Income Tax, Gujarat vs Gujarat Fluoro Chemicals [2013 (296) ELT 433 (SC)], clarified their earlier decision in the case of Sandvik Asia Ltd. vs Commissioner [2006 (196) ELT 257 (SC)] as under: Refund - Interest on delayed refund only when statute provides - Sandvik Asia Ltd. [2006 (196) E.L.T. 257 (S.C.)] - In this case, assessee who was made to wait for refund of interest for decades, was compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to final fixation. Hence the matter has attained finality. 09.08.2002 Appellant challenged the order date 21.03.1998 before tribunal. Tribunal vide its order set aside the order of Commissioner, and remanded the matter back to Commissioner for redetermination. 29.09.2003 Commissioner in remand proceedings again fixed the same ACP and MDL as was done by the earlier order of 21.03.1998 19.01.2004 Appellant filed appeal to the tribunal which was allowed and the matter was remanded back to commissioner for decision afresh. 29.07.2004 Commissioner directed the Assistant Commissioner to re-determine ACP and MDL 15.09.2004 Assistant Commissioner re-determined the ACP as 32670.848 MT and MDL at Rs 17,01,607/- and requested the Commissioner to issue the order as per Rule 3(4) and 4 of the Induction Furnace Annual capacity Determination Rules, 1997. 28.10.2009 Commissioner re-determined the ACP as 43174.27 MT and MDL as Rs 22,48,868/- as was done earlier vide order of 21.03.1998 25.06.2010 CESTAT remanded the matter back to the Adjudicating Authority for re-determining the ACP and MDL as per order dated 29.07.2004 06.09.2010 Appellant filed the application for refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant case. 7.1 The Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. 205 (181) ELT 328 (SC) held as under: "The doctrine of 'unjust enrichment', therefore, is that no person can be allowed to enrich inequitably at the expense of another. A right of recovery under the doctrine of 'unjust enrichment' arises where retention of a benefit is considered contrary to justice or against equity. ....... it is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss." In the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate (of 03.10.2011 - Exhibit 'C' of written submission)- "e certify that central excise duty paid during compounded levy period was not charged either from the buyer or shown separately in the invoices issued""same is not acceptable because the prices mentioned on invoices were inclusive of central excise duty and neither the appellants nor the Chartered Accountants has adduced any evidence or material to demonstrate as to how the prices at the time of clearance did not include component of Central Excise duty. 14. Therefore in view of above discussion the observations and findings regarding unjust enrichment forming part of the impugned order-in-original dated 28.04.2011 are sustainable. 12. In view of above I find no reason to interfere with the order in original dated 28.04.2011 and therefore refuse to allow the appeal." 3.5 This order of Commissioner (Appeal) was challenged by the appellant before the tribunal and tribunal has vide final order No 71947/2018 dated 07.08.2018 allowed the appeal filed by appellant with consequential relief if any. Tribunal has held as follows: "2. We find that the larger bench of the Tribunal in the case of Mohinder Stels repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for Refund filed by the appellant under Section 11B of the Central Excise Act, 1944 on 06.09.2010. Revenue has throughout treated the application to be made in under Section 11B and even the order dated 19.03.2019 allowed the refund in favour of appellant holding that the refund is to be sanctioned in favour of the appellant as per the section 11 B of the Central Excise Act, 1944. Undisputedly erstwhile Section 3 A (5) of the Central Excise Act, 1944 read as follows: "(5) Where the Commissioner of Central Excise determines the actual production under sub-section (4), the amount of duty already paid, if any, shall be adjusted against the duty so re-determined and if the duty already paid falls short of, or is in excess of, the duty so re-determined, the assessee shall pay the deficiency or be entitled to refund, as the case may be." The present case is not a case for redetermination of duty on the basis of actual production in terms of the Section 3A (4) hence this provision is not applicable for processing the refund application. It is worth noting the tribunal has in order of 07.04.2018, held relying on the decision in the case of National Ceramic Works [2009 (237) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court.'' 3.9 Adjudicating Authority has in his order in para 2, very categorically sated that the letter dated 10.01.2019 forwarding the decision dated 07.08.2018 of the tribunal was in reference to the refund claim filed by the appellant on 06.09.2010. Section 11BB of the Central Excise Act, 1944 is reproduced below: "Section 11BB. Interest on delayed refunds. - If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, not below five per cent and not exceeding thirty per cent per annum as is for the time being fixed by the Central Government, by Notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n only when the Dy. Commissioner passed the order on the basis of CESTAT order No. A/354/WZB/04-C-II dt. 20-5-2004 vide OIO No. SRT-V/ADJ-44/2004-F.A. dt. 29-10-2004 and re-determined the Annual Capacity of Production by excluding the length of gallery portion. Thereafter, the appellant filed the refund claim on 5-3-2005 which was sanctioned to them. Therefore, the three months period under Section 11BB is upto 4-6-2005." The fresh claim has been made in pursuance of the directions of the Hon'ble High Court in their order dt. 29-8-2002. The decision of the Commissioner (Appeals) is that the refund become admissible only after finalization of APC and hence the date of the fresh claim submitted by the appellant in pursuance of the order of the Hon'ble High Court shall be relevant date for the purpose of payment of interest. The above decision of the Commissioner (Appeals) and the reasoning adopted are legal and proper and do not warrant any interference." The present refund claim has been filed only after the Tribunal has set aside the order determining the ACP and remanded the matter back to Commissioner for redetermination on 25.06.2010. Commissioner has then by the order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a creature of the statute cannot decided the issues against the express provisions in law. Hon'ble Supreme Court has in the case of Northern Plastics Ltd [1997 (91) E.L.T. 502 (S.C)] held as follows: "8. At the outset it must be kept in view that appeal is a creature of statute. The right to appeal has to be exercised by persons permitted by the statute to prefer appeals subject to the conditions regarding the filing of such appeals. We may in this connection usefully refer to a decision of four learned Judges of this Court in the case of The Anant Mills Co. Ltd. etc. etc. v. State of Gujarat & others etc. etc. [AIR 1975 S.C. 1234 = (1975) 2 SCC 175]. In that case Khanna, J., speaking for the Court had to consider the question whether the provision of statutory appeal as per Section 406(2)(e) of the Bombay Provincial Municipal Corporation Act, 1949 which required the appellant to deposit the disputed amount of tax before appeal could be entertained could be said to be in any way violative of Article 14 of the Constitution of India. Repelling the aforesaid challenge to the vires of the said provision the following pertinent observations were made in Para 40 of the Report : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment had erred in drawing the analogy from the more elastic concept of locus standi under Article 32 or Article 226 evolved by this Court by its decisions on the subject. It is also to be appreciated that the decision of this Court in Bar Council of Maharashtra v. M.V. Dabholkar etc. etc. [AIR 1975 S.C. 2092] was based on an entirely different statutory scheme. For judging the competence and locus standi of the Union of India or the HPF for moving appeals before CEGAT against the order of Additional Collector of Customs passed under Section 122 of the Act the answer must be found from within the four corners of the Act itself. 10. We have, therefore, to turn to the scheme of the Act providing for appeals. Provision of appeals is found in Chapter XV of the Act. Section 128 deals with `Appeals to Collector (Appeals)' and Section 128A deals with `Procedure in appeal'. The Appellate Tribunal is constituted as per Section 129 of the Act. Sub-section (1) thereof lays down that, `the Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Gold (Control) Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
