Fenner (India) Ltd vs Commissioner Of Central Excise & St

[Arising out of Order-in-Appeal No.450-455/2009 dated 31.12.2009 passed by the Commissioner of Central Excise (Appeals), Madurai]

Fenner (India) Ltd. Appellant

Versus

Commissioner of Central Excise & ST, Madurai Respondent

Appearance:

Shri V.Panchnathan, Consultant For the Appellant Shri K.P.Muralidharan, AC (AR) For the Respondent

CORAM:

Honble Shri R. Periasami, Technical Member

Date of hearing/decision :25.5.2015

FINAL ORDER No.40566-40571/2015

At the outset, Ld.Advocate submits that there are five more appeals of the same appellant on the same issue pending before Tribunal but not listed in today's cause list. He requested that since the issue is common, all the six appeals may be clubbed and taken up for disposal.

2. Therefore, Registry was called upon to link up those appeals. Accordingly, with the consent of both sides, all the six appeals are connected together and taken up for disposal.

3. These six appeals are arising out of a common Order-in-Appeal dt. 31.12.2009 passed by Commissioner (Appeals). The short issue arises in these matters where the adjudicating authority in his Orders-in-Originals while finalizing the provisional assessment for the period 1.4.2006 to 31.3.2009 partly sanctioned the refund and partly rejected the refund being excess duty paid in respect of discount passed through invoices or by way of credit notes as tabulated herein below :-

S.No. Period OIO and date Excess duty paid on account of discounts passed through depot /branch invoice in Rs.

Excess duty paid on account of discounts passed through credit notes in

Rs.

1. 1.4.2006 to 31.3.2007 15/2008 (R) dt. 23.6.2008 58,27,547 3,68,527

2. 1.4.2007 to 31.3.2008 3/2009 (R) dt. 27.2.2009 80,93,780 4,30,369

3. 1.4.2008 to 30.6.2008 04/2009 (R) dt. 23.3.2009 22,98,381 14,27,313

4. 1.7.2008 to 30.9.2008 5/2009(R) dt. 23.3.2009 20,45,903/-

21,09,852

5. 1.10.2008 to 31.12.2008 8/2009 (R) dt. 14.5.2009 18,10,989/-

20,70,055/-

6. 1.1.2009 to 31.3.2009 25/2009 dt. 4.9.2006 11,65,301/-

16,79,342/-

The appellants preferred appeals and lower appellate authority in a common appeal order upheld the OIOs and rejected the appeals. Hence the present appeals.

4. Ld. Advocate submits that they have filed appeals challenging the impugned order on the rejection of refund claim under unjust enrichment clause and he fairly admitted that they are not able to produce any evidence to prove discharge of incidence of duty.

5. Heard Ld. AR.

6. On perusal of the OIOs and the impugned order, I find that the appellants requested for finalization of provisional assessment and for valuation on various discounts on stock transfer of goods from their factory/dealers. The adjudicating authority while finalizing the provisional assessment for each year ranging from 2006 to March 2009 partly sanctioned refund being excess duty paid at factory on account of discount passed through depot/branch invoices and also rejected the amount as it failed the test of unjust enrichment clause. The LAA also held that said refund claims were hit by bar of unjust enrichment and relied the Tribunal's decision of this Bench in their own case in Final Order No.1265-1267/2007 dt. 12.10.2004 wherein appellant's appeals were rejected and relying on another Final Order No.905/09 dt. 30.7.2009 wherein Revenue's appeal was allowed. In the present case, the appellants are not able to prove with any evidence. Therefore, the claims are hit by bar of unjust enrichment. By following this Tribunal orders in their own case referred above, I hold that the rejection of refund is valid and the LAA has rightly upheld the order. Accordingly, the impugned order is upheld and all the six appeals are rejected. (Dictated and pronounced in open court)

(R. PERIASAMI) TECHNICAL MEMBER gs

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