Cce, Indore (M.P.) vs M/S.Parasrampuria International

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI

Date of Hearing/ Decision:16.09.2015

Excise Appeal No.E/2065/2006-EXDB)

[Arising out of Order-in-Appeal No.IND-I/115/2006 dated 21.03.2006 passed by the Commissioner (Appeals), Customs & Central Excise, Indore).

CCE, Indore (M.P.) Appellants

Vs.

M/s.Parasrampuria International Respondent

Appearance:

Rep. by Shri R.K. Grover, Advocate for the appellant.

Rep. by none for the respondent.

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

Honble Shri B. Ravichandran, Member (Technical)

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?

Coram: Honble Shri Ashok Jindal, Member (Judicial)

Honble Shri B. Ravichandran, Member (Technical)

Final Order No.52917/2015 dated:16.09.2015

Per Ashok Jindal:

Revenue is in appeal against the impugned order wherein the ld. Commissioner (Appeals) allowed the refund claim filed by the respondent.

2. The facts of the case are that the respondent is a 100% EOU engaged in the manufacture of man made yarn falling under Chapter 55 of the Central Excise Tariff Act, 1985.While scrutining their records, it was noticed that the yarn manufactured by them attracts Additional Excise Duty under Additional Duties of Excise (Textile and Textile Articles) Act, 1978 in respect of the clearances to the DTA. For the period March, 2000 to September, 2008, a demand notice was issued to the respondent for Rs.44.37 lakh. Pursuant to these proceedings, the respondent started paying additional excise duty w.e.f. November, 2001 onwards under protest. The respondent paid a sum of Rs.93,27,071/- on account of AED for the period November, 2001 to May, 2003. Later on, in their own case, for the earlier period, it was held that the respondent is not liable to pay additional excise duty, consequent to that, the respondent filed a refund claim for additional excise duty paid under protest. Revenues claim was rejected by the adjudicating authority on the ground of unjust enrichment. On appeal before the ld. Commissioner (Appeals), who examined the issue and arrived at the decision that the AED has been paid by the respondent from their own funds and have not been collected the same from the customers, allowed the refund claim. Aggrieved from the said order, Revenue is before us.

3. Ld. AR submits that as the respondent have not passed the bar of unjust enrichment, therefore, the ld. Commissioner (Appeals) has wrongly awarded the refund claim to the respondent.

4. None appeared on behalf of the respondent nor is there any request for adjournment but considering the facts of the case and being appeal is of 2006, matter is taken up for disposal.

5. On perusal of the records, it is a fact on record that the additional excise duty was paid by the respondent under protest and not collected from the customers. This fact has not been denied by the Revenue. Moreover, the amount paid on account of AED has been shown by the respondent as receivables in their balance sheet. Therefore, we hold that the respondent has passed the bar of unjust enrichment and is entitled for refund claim. With these observations, we do not find any infirmity with the impugned order. Same is upheld. The appeal filed by the Department deserves no merits and is dismissed.

[Order dictated & pronounced in the open court]

( Ashok Jindal )

Member (Judicial)

( B. Ravichandran)

Member (Technical)

Ckp.

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