M/S. Husmun Enterprises vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-SKSS/236/DMN/NDMN/2010-11 dated 09.11.2010, Passed by Commissioner (Appeals) Central Excise, & S.T., Daman)

M/s. Husmun Enterprises : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Daman : Respondent (s)

Represented by :

For Appellant (s) : Adj. request For Respondent (s) : Shri J. Nagori, Authorised Representative

For approval and signature :

Mr. H.K. Thakur, Honble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. H.K. Thakur, Honble Member (Technical)

Date of Hearing / Decision : 09.03.2015

ORDER No. A/10213 / 2015 Dated 09.03.2015

Per : Mr. H.K. Thakur;

This appeal has been filed by the appellant against OIA No. SKSS/236/DMN/NDMN/2010-11 dated 09.11.2010 under which OIO No. 02/AC/NDMN/2010-11/R dated 06.5.2010 passed by the Adjudicating authority was upheld. Adjudicating authority rejected the refund claim as time barred and also for non submission of documents under which the amounts were paid.

2. When the case was called out for hearing, none appeared on behalf of the appellant. An adjournment request dated 09.3.2015 was brought to the notice of the bench, sought on the grounds that Advocate of the appellant was busy in a ROA before the Fema Court, Delhi. The adjournment sought was strongly objected by the learned Authorised Representative Dr. Jeetesh Nagori. It is observed that on earlier occasions on 04.1.2013, 21.1.2013, 08.3.2013 and 31.5.2013 also adjournments were sought by the appellant. Under the facts and circumstances adjournment request of the appellant is rejected and case is taken up for hearing.

3. Shri J. Nagori (Authorised Representative) argued the matter on behalf of the Revenue. He made the bench go through Para 4.3 and 4.4 of the Order-in-Appeal dated 09.11.2010 to argue that appellant has failed to produce copies of the CENVAT credit record to establish that credit of Rs. 5,32,481/- was not taken by the appellant as a result of earlier appellate order passed. That, refund of Rs. 1,00,000/- redemption fine is also time barred as filed much beyond one year as required under Section 11B of the Central Excise Act, 1944.

4. Heard learned Authorised Representative and perused the case records. In view of the facts recorded in Para 4.2 of the Order-in-Appeal dated 09.11.2010, refund of Rs. 5,32,481/- was ordered to be taken as Cenvat credit as per Order-in-Appeal dated 29.12.1999 and unit was undertaking manufacture and clearance up to 19.9.2003. Appellant did not produce accounts of not taking credit during the period 29.12.1999 to 19.09.2003. In view of the above facts, first appellate authority has correctly rejected the appeal of the appellant with respect to refund of Rs. 5,32,481/-, as the appellant has also not produced any records with this appeal to the extent that no credit of Rs. 5,32,481/- was taken as a result of earlier favourable order passed by the first appellate authority.

5. However, so far as refund of Rs. 1,00,000/- redemption fine paid by the appellant is concerned, it is observed that the same is not a duty of excise to which the provisions Section 11B of the Central Excise Act, 1944 will be applicable. Accordingly, the time bar of one year or unjust-enrichment will not be applicable to refund of redemption fine paid by the appellant. Accordingly, appeal of the appellant to the extent of refund of Rs. One lakh is required to be allowed.

6. Appeal of the appellant is thus allowed only to the extent indicated in Para 5 above, with consequential relief.

(Operative part of the order pronounced in the Court)

(H.K. Thakur) Member (Technical) .KL

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