Arasan Syntex Limited vs Commissioner Of Customs, Trichy

Customs Excise and Service Tax Appellate Tribunal7 January 2015

CitationAppeal No. 8 & 9/2004-TVL (ADK) dated 30.3.2004 passed by the Commissioner of Customs and C

Ratio decidendi

The rule this decision rests on

A refund claim under excise law cannot succeed where the assessee has not shown, through a provisional assessment or other material on record, that the duty paid exceeded the duty payable on a self-assessed return; the burden of demonstrating the fact situation giving rise to the refund rests on the claimant. Unjust enrichment under the Central Excise Act, 1944 (Section 11D) requires the claimant to establish that the State has been enriched at the expense of the subject; absent such demonstration, no finding of unjust enrichment against the State can be made and the plea fails.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE & SERVICE TAXAPPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIC/136/2004

(Arising out of Order-in-Appeal No. 8 & 9/2004-TVL (ADK) dated 30.3.2004 passed by the Commissioner of Customs and Central Excise (Appeals), Tiruchirapalli)

Arasan Syntex Limited Appellant

Vs.

Commissioner of Customs, Trichy Respondent

Appearance

None for the Appellant Ms. Indira Sisupal,, AC (AR) for the Respondent

CORAM

Honble Shri D.N. Panda, Judicial Member Honble Shri R. Periasami, Technical Member

Date of Hearing: 07.01.2015 Date of Decision: 07.01.2015

Final Order No. 40013 / 2015

Per D.N. Panda

None present for the appellant nor there is any adjournment application. The matter is rolling on board from 2004. At every stage of hearing, adjournment has been sought. 10 years have been passed in the meantime and appellant is not conscious to pursue the remedy of appeal, causing appearance to explain its case. Therefore, with the assistance of Revenue matter was taken up for disposal.

2. Learned AR explained that appellants claim is that excise duty payable being less than the excise duty paid, refund is admissible to the appellant. Such a claim was denied by the authorities below in absence of any provisional assessment done or any material on record demonstrating the fact situation as well as evidence giving rise to the refund claimed.

3. In absence of appellant, adjudication order was carefully examined. It shows that learned adjudicating authority has carefully understood what was the issue before him. He negated the claim of refund finding that there was no provisional assessment. He also found that the duty liability was self-assessed and that was evidenced from ER-I return. Nothing was demonstrated before him as to the manner how refund arose to the appellant.

4. For the categorical finding in the adjudication order and also there being nothing in the grounds of appeal to demonstrate whether there arose any refund, there is no necessity to intervene to the orders passed by the authorities below.

5. The appellant has also a plea that Section 11D is otherwise applicable since State is enriched at the cost of the appellant. We are conscious that the appellant has not made out a case to prove that how State has been enriched at the cost of its subject following the law laid down in the case of Salonah Tea Company Ltd. Etc. Vs. Superintendent of Taxes, Nowgong & Ors. Etc. 1988 (33) ELT 249 (SC). Finding no unjust enrichment by the State, appeal is dismissed.

(Dictated and pronounced in open court)

(R. PERIASAMI) (D.N. Panda) Technical Member Judicial Member

Rex

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