9911796707
TMI Blog2023 (9) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional Commissioner of Central Excise, set aside the sanction of refund allowed by the competent authority under section 11B of Central Excise Act, 1944, is the applicability of test of 'unjust enrichment' on claim for return of 'deposits' made during investigation. That such was nature of the remittance is apparent from the orders of the lower authorities which have recorded that Rs. 1,74,13,087 had been debited in the 'personal ledger account (PLA)' on 7th August 2000 even as the demand, for the period from August 1994 to November 2006, was adjudicated only on 27th February 2001. 2. Briefly, the facts are that appellant had been availing MODVAT credit on 'tin cans' used for packing and sale of 'lubricants' manufactured by them a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in Commissioner of Central Excise, Kanpur v. Kanpur Plastipack Ltd [2001 (127) ELT 826 (tri-Del)] holding that '3. ......... Proviso (c) to sub-section (2) of Section 11B of the Central Excise Act makes an exception in respect of cases involving credit of duty. This provision refers to payment of refund of duty to the applicants of credit of duty paid on inputs in accordance with Rules or Notification. Thus, refund of credit of duty to the applicants is permitted. Our finding is supported by the decisions of the Tribunal in the cases of C.C.E., Bhubaneshwar v. Orient Paper Mills, 1994 (73) E.L.T. 648 and C.C.E., Kanpur v. Brooke Bond Lipton, 1999 (107) E.L.T. 228. 4. In the light of the above decisions, the finding of the lower Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking up these aspects, we are not required to examine those aspects in the narrow compass of this dispute. 6. It would appear that the facts were not properly appreciated by the first appellate authority and thus the decision of the Hon'ble Supreme Court in re Solar Pesticides Pvt Ltd, which held that even refund of duties wrongly collected on raw materials and goods used for captive consumption would be subject to the test of 'unjust enrichment' before release to the claimant, came to be misapplied 7. The appellant had taken MODVAT credit on 'tin cans' between August 1994 and November 2006 which was held as ineligible; consequently, the utilization of such credit for payment of duty on excisable goods cleared by debit thereof was held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 does not bar the test of unjust enrichment. Appellant has furnished certification from Chartered Accountant that amount was not debited against any particular clearance. Without evaluation of the pricing practice of the appellant for 'lubricant', discard of the certification on supposition of it having been treated as 'expense' and, therefore, built into the manufacturing cost of products cleared after 2000 is neither logical nor consistent with obligation of appellate authorities to restrict fact finding only upon evidence. In a departmental appeal, that should have been preferred as a ground of appeal on the basis of computation; a finding without such factual evaluation, in circumstances of that onus resting on the reviewing authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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