9911796707
TMI Blog2023 (9) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... -01 nor duty of 2000-01. The conclusion that recognition as income in the year of sanction, which it undoubtedly was, does not automatically turn that into expense of earlier years. In UNION OF INDIA VERSUS SOLAR PESTICIDE PVT. LTD. [ 2000 (2) TMI 237 - SUPREME COURT] it was held that evidence of duty incidence not having been passed on cannot be claimed to be unavailable and, therefore, entitling claimant to exclusion from the onus of section 11B of Central Excise Act, 1944 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng investigation. That such was nature of the remittance is apparent from the orders of the lower authorities which have recorded that ₹ 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 and proceedings were initiated for denial of the credit as the inputs had not been deployed at the factory of manufacture but in their filling facility. The confirmation of recovery of ₹ 2,46,84,459, contested by them before the Tribunal, was set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olving 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 Appellate Authority that requirement of cost data on HDPB tapes is irrelevant since duty on tape was paid at specific rate and that verification of modvatable documents showed the total credit available, amount of duty paid, amount of duty to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as improper requiring proper discharge of duty liability upon completion of adjudication and, of the ₹ 2,46,84,459 in dispute, ₹ 1,74,13,087 was debited in the personal ledger account (PLA) on 7th August 2000 long after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority, cannot sustain. The certification by Chartered Accountant, considering the contents therein, suffice for discharging obligation to demonstrate that incidence of such duty has not been passed on. 9. Accordingly, im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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