Jalandhar (Hq At Chandigarh) vs M/S Shankar Printing Mills

[Arising out of OIA No.161/CE/JAL/2006, dt.28.04.2006, passed by Commissioner of Central Excise & Customs (Appeals), Jalandhar (HQ at Chandigarh)

Commissioner, Central Excise & Service Tax,

Jalandhar (HQ at Chandigarh) Appellant

Vs

M/s Shankar Printing Mills Respondent

Represented by:

For Appellant: Shri Yashpal Sharma, Authorised Representative

For Assessee: Ms.Surabhi Sinha, Advocate

For approval and signature:

Mr. P.K. Das, Honble Member (Judicial)

Mr. P.S. Pruthi, Honble Member (Technical)

1. Whether Press Reporters may be allowed to see the No

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 Seen

the order?

4. Whether order is to be circulated to the Departmental Yes

authorities?

CORAM:

MR. P.K. DAS, HONBLE MEMBER (JUDICIAL)

MR. P.S. PRUTHI, HONBLE MEMBER (TECHNICAL)

Date of Hearing/Decision:23.01.2015

Final Order No.51100/2015

Per: P.K. Das

1. The relevant facts of the case, in brief, are that the Respondents were engaged in processing of Man Made Fabrics Hot Air Stainter, working under Compounded Levy Scheme under Hot Air Stenters Independent Textile Processors Annual Capacity Determination Rules 1998. The Respondents filed refund claim of Rs.3,37,817.00 and Rs.1,68,300.00 on the strength of Order-in-Appeal No.259-261/CE/CHD-II/2001, dt.09.08.2001. The Adjudicating authority rejected the claim on the ground of unjust enrichment. The Commissioner (Appeals) set aside the adjudication order.

2. For the purpose of proper appreciation of the case, we reproduce below the findings of Commissioner (Appeals):-

Though the appellants have contended that the incidence of duty paid on galleries has not been passed on to the customers/buyers and in their support they have produced certificate from Chartered Accountant but not accepting the plea the Adjudicating authority rejected the refund claims. In their defence, the appellants have pleaded that the sequence of the events clearly shows that the refund claims had attained finality if not on passing of Order-in-Appeal by the Commissioner (Appeals) at least on the passing of order of the Tribunal and the appellants become entitled to suo moto credit subject to giving intimation to the department. It has been submitted that when refund claim has been decided in favour of the appellants then the same cannot be rejected on the ground of unjust enrichment. Therefore, it has been pleaded that impugned order so far as it relates to force rejection of refund of Rs.3,37,817/- and Rs.1,68,300/- is hit by the doctrineof Resjudicate and hence merits to be set aside. On the main issue as to whether incidence of duty has been passed on to the customers or not, it has been forcibly argued by the appellants that incidence of duty has not been passed on to the customers/buyers. In their support, they have produced a certificate of Chartered Accountant certifying that duty paid in respect of galleries has neither been debited to Manufacturer/Trading Account and nor has been recovered from the parties. It has been further contended that the amount of refund has shown as recoverable in their balance sheet which is sufficient to prove that the burden of duty has not been passed on to the customers/buyers.

3. On perusal of the findings of the Commissioner (Appeals), it is clear that the amount in question was shown in the balance sheet as recoverable. This was also certified by the Chartered Accountant. This fact was not disputed by the Revenue in the grounds of appeal. In our considered view, it is clearly evident from the balance sheet that the amount was not recovered from any other person. Then, it will be held that the applicant fulfilled the principles of unjust enrichment.

4. In view of the above, we do not find any reason to interfere with the order of Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.

(Dictated & Pronounced in Court)

(P.S. Pruthi) (P.K. Das)

Member (Technical) Member (Judicial)

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