Bhogavati Sahakari Sakhar Karkhana Ltd vs Commissioner Of Central Excise, Pune- ...

Customs Excise and Service Tax Appellate Tribunal18 February 2015

CitationAPPEAL NO. E/201/05-MUM

Ratio decidendi

The rule this decision rests on

The doctrine of unjust enrichment applies to a claim for rebate of excise duty on excess production of sugar, and it applies to pending cases whether or not the issue was raised in the original show cause notice; the bar on raising a ground not in the show cause notice does not prevent the authority from invoking it. Because the claimant has not shown that the duty burden was not passed on to customers, the rebate claim fails on the ground of unjust enrichment; however, where the record does not establish that the burden was not passed on, the claimant is entitled to an opportunity to produce evidence to that effect, and the matter is remanded to the original authority to be decided after observing the principles of natural justice.

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

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALWEST ZONAL BENCH AT MUMBAICOURT NO. IIAPPEAL NO. E/201/05-MUM

(Arising out of Order-in- Appeal No. PII/203/04 dtd. 5/11/2004 passed by the Commissioner(Appeals) Central Excise, Pune-II )

For approval and signature:

Honble Mr. P.K. Jain, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities?

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Bhogavati Sahakari Sakhar Karkhana Ltd. :

Appellants

Commissioner of Central Excise, Pune- II :

Respondent

Appearance

None for the Appellant Shri. Ashutosh Nath, Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 18/2/2015 Date of decision 18/2/2015

ORDER NO.

Per : P.K. Jain

The brief fact of the case is that the appellant claimed rebate of excise duty under Notification No. 135/83 for higher production of sugar during the period 1/4/1983 to 30/9/1983 amounting Rs. 5,95,211/-. Vide original order dated 5/5/1999 the original authority dismissed the claim on the ground of unjust enrichment. Aggrieved by the said order the appellant file appeal before the Commissioner (Appeals), who upheld the order of the original authority. 2. None appeared on behalf of the appellant. 3. From the records, we find that grievance of the appellant is that the issue of unjust enrichment was not raised in the show cause notice and therefore can not be raised at this stage. We find that the Honble Supreme Court in the case of Sahakari Khand Udyod Mandal Ltd. Vs. CCE{2005(181) E.L.T. 328(S.C.)] has held that the doctrine of unjust enrichment would be applicable even in respect of rebate of excess production of sugar. Honble Supreme Court and High Courts in catena of judgments have already held that the doctrine of unjust enrichment is applicable to all pending cases whether these are raised in the original show cause notice or not. We therefore do not find any merit in the appeal filed by the appellant. However in the interest of justice the matter is remanded to the original authority to give appellant one more chance to prove that they have not passed on the burden of duty to their customers. The matter pertains to period 1983. Appellant is therefore directed to produce all the evidences to the Asst. Commissioner within a period of three months from the date of receipt of this order. Jurisdictional Dy./Asst. Commissioner after following the principle of natural justice would decide the case on merit. (Operative part pronounced in the Court)

Ramesh Nair Member (Judicial) P.K. Jain Member (Technical)

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