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TMI Blog2024 (8) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant is eligible for the benefit of exemption of the notification and that they are not liable to pay the CVD. Consequently, the Commissioner (Appeals) remanded the matter to verify as to whether the claim of refund is hit by unjust enrichment. In such de novo order, the original authority held that after verification of details from the Range officer concerned, it is established that the duty element is not passed on to another. There are no ground to accept the argument of the appellant that they are eligible for interest on the refund by considering the date of filing the original refund claim. In regard to the periods for July 2016 to September 2016 as well as October 2016 to June 2017, the Ld. Consultant has brought to our notice that the refund claims were filed on 27.06.2017 and 16.10.2017 respectively. The Department has not issued any SCN at all for these periods. The appellant is eligible for interest on the delayed payment of refund from the date immediately after the expiry of 3 months from the date of Order-in-Appeal dt. 23.08.2018 in terms of Section 11BB of Central Excise Act, 1944. The appellant would be eligible for interest at the rate applicable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated the protest. Consequently, the refund claim was rejected. The period of the refund claim, the amount of claim, the date of filing the claim and date of SCN are given as under : S. No. Period of Claim Claim amount (Rs.) Date of Filing of claim SCN particulars 1. March 2013 to March 2014 3,85,54,460 05/05/2014 No.02/2014-15 2. April 2014 to February 2015 4,14,07,239 27/03/2015 01/2015 3. July 2015 to June 2016 8,28,97,403 11/01/2017 31/05/2017 4. July 2016 to September 2016 3,29,31,956 27/06/2017 SCN not preferred 5. October 2016 to June 2017 4,41,29,009 16/10/2017 Against such order of rejecting the refund, the appellant filed an appeal before the Commissioner (Appeals) who vide Order-in-Appeal No.431/2018 (CTA-II) dt. 23.08.2018 allowed the appeal and directed the original authority to verify whether the refund is hit by unjust enrichment. 6. Though the Commissioner (Appeals) in the above order had held that the appellant is eligible for exemption of CVD, however, had remanded the matter for verification of unjust enrichment to the original authority. Against such observation and direction of remand to the original authority, the appellant filed appeal before the Tribunal as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciency in the application. 10.3 It is submitted that in the SCN the allegation was that the appellant is not eligible for the benefit of exemption of CVD. There was no murmur about the test of unjust enrichment. After receipt of the refund application, the department has not issued any SCN to the appellant alleging that the refund claim is liable to be rejected as the appellant has not furnished proof of passing the test of unjust enrichment. It is bounden duty of the Department to analyze the issue of unjust enrichment in every refund application. The issue of unjust enrichment was for first time put forward by the Commissioner (Appeals) who had remanded the matter on 23.08.2018. 10.4 Though appellant filed an appeal before the Tribunal against such direction of remanding the matter for verification of unjust enrichment, due to pressing circumstances from the side of the Department, the appellant withdrew the appeal on 29.06.2021. The appeal was withdrawn at the instance of the adjudicating authority who had initiated the verification of refund claim and advised the appellant to withdraw the appeal in order to sanction the refund claim. The appellant withdrew the appeal and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant is not eligible for exemption and the duty paid is in order. The issue as to whether appellant is eligible for benefit of exemption as per Notification No.30/2004 dt. 09.07.2004 has attained finality only by the Order-in-Appeal dated 23.08.2018. The appellant has filed fresh refund application on 10.03.2021. A show cause notice was issued to the appellant which was adjudicated. These being facts, the appellant cannot revert to the earlier refund application to claim interest. 11.2 The Ld. A.R relied upon the decision of the Tribunal in the appellant s own case dt. 03.07.2024 (supra) to submit that on identical set of facts, the Tribunal has considered all the pleas put forward by the appellant and held that interest would be eligible only from the date of Order-in-Appeal dt. 23.08.2018. The decision of Tribunal is binding and has to be applied to the facts of this case also. 12. Heard both sides. 13. The present appeals are filed claiming the interest on the refund amount sanctioned alleging that there is delay in sanctioning the refund. 14. The contention of the appellant is that they filed the refund claim in 2014 / 2015 /2017 on various dates. The period of refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t passed on to another. The appellant also submitted a Chartered Accountant certificate certifying that the amount of CVD claimed as refund is reflected as recoverables in their balance sheet. The refund amount was sanctioned. 16. The relevant part of the order passed by the original authority dt. 28/2022 dt. 14.7.2022 is reproduced as under :- 5.16 I notice that in the instant refund the facts are similar to the refund in r/o which Commissioner (Appeals) passed Order-in-Appeal No. 91/2020(CTA-II) dated 30.10.2020 allowing consequential relief. In the instant case also, the invoices raised by DTA do not reflect the CVD paid to show that duty incidence has been passed on to customers. The invoices raised by DTA are sometimes at a rate lower than the price at which it was cleared from EOU. Further, M/s. TIIPL have submitted a Chartered Accountant certificate certifying that the amount of CVD claimed as refund is reflected in the Balance Sheet as Recoverable from Tax Authorities under Current Assets, which indicates that the same was not passed on to customers. In view of the foregoing, I am inclined to hold that M/s. TIIPL have not passed on the duty incidence to customers and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply. In these circumstances, we do not find any ground to accept the argument of the appellant that they are eligible for interest on the refund by considering the date of filing the original refund claim. In regard to the periods for July 2016 to September 2016 as well as October 2016 to June 2017, the Ld. Consultant has brought to our notice that the refund claims were filed on 27.06.2017 and 16.10.2017 respectively. The Department has not issued any SCN at all for these periods. The matter was adjudicated vide common Order-in-Original No.41 to 45 CE (R) dated 29.11.2017 by which the original authority held that they are not eligible for the exemption benefit. Even though there were show cause notices issued on the earlier refund claims, the appellant had withdrawn the appeal filed before the Tribunal raising the ground that the remand for determining the issue of unjust enrichment is not proper. Further they filed refund claim which was adjudicated and refund sanctioned. 19. As already stated, the Tribunal had decided the issue for the period July 2015 to June 2016 vide Final Order No.40795/2024 dt. 03.07.2024. The arguments put forward by both sides were considered in detail. ..... 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