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TMI Blog2024 (1) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Allahabad High Court in the similar situations in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS M/S ADVANCE STEEL TUBES LTD. [ 2018 (3) TMI 627 - ALLAHABAD HIGH COURT ] has held The department was not justified in applying the bar of unjust enrichment to the remaining amount of ₹ 10,34,880/- without there being any cogent material or evidence to support it and without the department having considered the cost structure of goods for that amount. Since the issue is squarely covered by the above referred decision of Hon ble Jurisdictional High Court, there are no merits in this appeal filed by the revenue - appeal dismissed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Santosh Kumar, Authorised Representative for the Appellant Shri Rakshit Verma, Advocate for the Respondent ORDER This appeal is filed by the revenue against Order-in-Appeal No.GZB/EXCUS/000/APPL-MRT/232/2019-20 dated 14/11/2019 passed by Commissioner (Appeals) Central Goods Services Tax, Ghaziabad. By the impugned order Commissioner (Appeals) has held as follows:- In view of the above discussion and findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate, copies of relevant challans and other supporting documents on 20.08.2018. 2.5 Vide Order-in-Original dated 30.03.2019 the Assistant Commissioner, Central Goods Services Tax, Ghaziabad sanctioned the refund claim of Rs.96,92,428/- and ordered to credit the same to the Consumer Welfare Fund under Section 11B(2) of the Central Excise Act, 1944 as applicable to service tax matters under Section 83 of the Finance Act, 1994. 2.6 Being aggrieved by the order, respondents filed appeal before Commissioner (Appeals), who vide the impugned order allowed the appeal of the respondent. Aggrieved revenue have filed this appeal by stating as follows:- Commissioner (Appeals) has wrongly held that the bar of unjust enrichment does not apply to the instant case. He has also wrongly held that merely because it was shown as expenditure, the department cannot contend that pre-deposit made by the assessee is hit by unjust enrichment. Further, he also wrongly held that as the amount was to be treated as pre-deposit, the provisions of Section 35FF would apply for grant of interest. Reliance is placed on the following judgements:- Sahkari Khand Udyog Mandal Ltd. Vs CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der:- There are also very many judgments of various Courts, which have also reiterated the same principles that in case any amount is deposited during the pendency of adjudication proceedings or investigation, the said amount would be in the nature of deposit under protest and, therefore, the principles of unjust enrichment would not apply. In view of the catena of decisions, available on this issue, this Court answers the first substantial question of law against the Revenue and in favour of the assessee. 5. Madras High Court in Commissioner of Central Excise v. Pricol Ltd. (supra) relied on a Bombay High Court judgment in Suvidhe Ltd. v. Union of India - 1996 (82) EL.T. 177 (Bom.): and this Court's judgment in Summerking Electricals (P) Ltd. v. CEGAT - 1998 (102) ELT. 522 (All). 6. Against the judgment of Bombay High Court in Suvidhe Ltd. (supra), Revenue preferred an appeal before Supreme Court but High Court's view was maintained. The said judgment is reported in Union of India v. Suvidhe Ltd. - 1997 (94) E.LT. A159 (S.C.). 5.1 Moreover, the Hon'ble High Court of Allahabad, in the case of Ebiz Com Private Limited Versus CCE ST [as report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her submitted that he is also entitled for interest on delayed refund. In this regard, I find that the order confirming the demand was appealed against before the Hon'ble CESTAT who had set aside the same. The appellant, in order to prefer an appeal against the order confirming the demand, was required to make deposits in terms of Section 35 F of the Central Excise Act, 1944 as made applicable to Service Tax matters vide Section 83 of the Finance Act, 1994. In the absence of anything having been submitted by the appellant that the pre-deposit was waived by the CESTAT, the entire amount paid by the appellant became pre-deposit under the said Section 35 F ibid The appellant was, therefore, entitled to interest in terms of Section 35 FF of the Central Excise Act, 1944 as made applicable to Service Tax matters vide Section 83 of the Finance Act, 1994. However, the date from which interest is payable to appellant depends on the date (s) on which the deposits were made. I find that the appellant had paid the entire subject amount prior to the commencement of the Finance (No.2) Act 2014, (w. e. f. 06.08.2014) for which the interest payable would be governed by the provisions of the er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the appellant was not paying Service Tax and therefore the question of collecting Service Tax does not arise. As regards Balance Sheet and Profit Loss Account, it was submitted that the appellants followed the cash accounting method and therefore as soon as the Service Tax was paid, it was shown as Revenue expenditure. 4. Ld. A.R. for the Revenue adopts the logic and reasoning applied by the lower authorities for rejecting the refund. 5. I have considered the submissions made by both sides. The original adjudicating authority credited the refund amount to Consumer Welfare Fund and rejected the claim of interest with the following observations : I have perused the copies of invoices for the year 2005-2006 furnished by the said claimant and noticed that these invoices did not indicate that the Service Tax was exempt at the relevant time. I find that Section 67(2) of Finance Act, 1994 provides where the gross amount charged by a service provider, for the services provided or to be provided is inclusive of Service Tax payable, the value of such taxable service shall be such amount as, with the addition of tax payable, is equal to the gross amount charged. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The first notice dated 14.03.2002 was adjudicated and a demand of Rs.2,84,389/- was confirmed. A penalty of Rs.1,00,000/- was also imposed. This amount was appropriated out of the sum of Rs.15 Lakhs deposited by the party under protest. The penalty of Rs.1 lakhs was deposited by the party by way of a Challan dated 20.12.2002. The department preferred an appeal before the Hon'ble CESTAT against the said order which was dismissed on 29.05.2004 and the said order was accepted by the Commissioner, Central Excise, Ghaziabad on 21.07.2004. 9. Insofar as the second show-cause notice dated 28.05.2002 is concerned, a demand of Rs.32,38,036/- was raised against the party, and the matter was referred to the Settlement Commission, New Delhi. The Settlement Commission settled the aforesaid demand for an additional duty liability of Rs.5,55,731/-, which was also appropriated from the amount which was deposited by the assessee under protest. Immunity from the payment of penalty and interest was also granted vide Settlement Commission's order dated 11.06.2004. 10. Thus, on facts the admitted position is that the matter relating to discrepancies of the party we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course of investigation for the past period. The goods had already been cleared earlier. The third Member also emphasized that the confirmed duty was adjusted from the pre-deposit made at the time of investigation by treating it as a sanctioned refund. Insofar as the the amount which had been taken by the department during investigation that is a sum of Rs.8,40,120/- the same had also been taken without considering the cost structure of the goods and despite that the department was invoking the bar of unjust enrichment to the balance amount for which the refund has been claimed and this would not be tenable. 16. Learned counsel for the department Shri Krishna Agrawal has very strenuously argued that the provisions of Section 12A and 12B of the Act are attracted in this case as in this case it seems on presumption that the burden had been passed on indirectly to the buyer. 17. However, the contest made in the present appeal is only with regard to the refund of balance amount of Rs.10 lacs and odd and no issues have been raised by the department with regard to any unjust enrichment in respect of amount which was adjusted by them for a sum of Rs.8,40,150 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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