Amd Metplast Pvt. Ltd vs C.C.E & S.T., Ghaziabad

[Arising out of Order-in-Appeal No. 210-CE/GZB/2011-12 dated 29.12.2011 by the Commissioner (Appeals), Central Excise, Ghaziabad.]

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Amd Metplast Pvt. Ltd. .Appellants

Vs.

C.C.E & S.T., Ghaziabad .Respondent

Appearance:

Shri S.D. Gaur, Advocate for the Appellants

Shri A.K. Bhasin, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 18.03.2015

Date of Order: 18.03.2015

FINAL ORDER NO. 50802/2015

Per Ashok Jindal:

The appellant is in appeal against the impugned order wherein the refund claim has been rejected on the premise that the appellant has failed to pass the bar of unjust enrichment.

2. The facts of the case are that the appellant supplied the printed sheet to their sister unit during the period 28.02.2004 to 18.0.2004 charging excise duty at the rate of 16 per cent ad valorem instead of 8 per cent ad valorem. Later on, it was realized that duty is payable only 8 per cent. Therefore, they issued credit note to sister unit reverse the credit taken by them. In these set of facts the appellant filed the refund claim of excess duty paid by them but same was rejected by the both the lower authorities on the premise that appellant has failed to pass the bar of unjust enrichment. Therefore, the appellant is before me.

3. The Ld Consultant submits that it is fact on record that the sister unit to whom the goods were transferred have reversed the excess duty. Therefore, the bar of unjust enrichment has been passed by the appellant and hence appellant is entitled to take cenvat credit. To support this contention he relies on the decision of C.C.E, Raigarh Vs Ispat Industries Ltd.-2014 307 ELT 927, Tri-Bombay.

4. On the other, Ld. A.R. opposed the contention of the Ld. Counsel and submits that initially the sister unjust has taken the credit. Therefore, the appellant has failed to pass the bar of unjust enrichment. To support this contention he relies on the decision of C.C.E, Ludhiana Vs Oriental Textile Processing Co. (P) Ltd.- 2012 (276) E.L.T 257(Tri-Delhi) and Rajasthan Processors (India) Ltd. Vs Collector-1994 (70) ELT A182 (SC).

5. Heard the parties, considered the submissions.

6. In this case these facts are not in dispute that appellant paid excess duty and sister unit has reversed the credit and thereafter credit not was issued to sister unit for excess duty paid. The Ld. A.R. relied on the decision of C.C.E, Ludhiana Vs Oriental Textile Processing Co. (P) Ltd (supra) in that case the issue before this Tribunal was that the buyers issued debit note but it was not ascertainable from the facts of the case whether buyer has reversed the cenvat credit in their credit account or not. Therefore, this Tribunal came to the conclusion that in such a case by issuing mere debit note does not pass the bar of unjust enrichment. The decision of the Rajasthan Processors (India) Pvt. Ltd. (supra) have no relevance to the facts of this case, as in that case there was no reduction of duty in the finance bill and on the basis of that the supplier of goods filed refund claim and issued credit note to the buyers. But, fact was not ascertainable whether buyers have reversed the cenvat credit to duty paid by them or not. I have gone through the decision of Ispat Industries Ltd. (supra) wherein it has been ascertainable that excess duty has been reversed in the cenvat credit account by the buyer and same is the case here. Therefore, when the fact is ascertained, duty credit has not been availed by the buyer of the goods, in that situation the appellant has discharged their burden of unjust enrichment and same in this case, therefore, I hold that the appellant is entitled for refund claim with these terms impugned order is set aside, appeal is allowed with consequential relief.

(Order dictated in the open court)

(Ashok Jindal)

Member (Judicial)

Bhupen

2