M/S. Mangalam Drugs & Organics Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-AKP/311/DMN/VAPI-I/2009-2010 dated 18.02.2010, Passed by Commissioner (Appeals) Central Excise, & S.T., Daman)

M/s. Mangalam Drugs & Organics Limited : Appellant (s)

VERSUS

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

Represented by :

For Appellant (s) : Shri S.J. Vyas, Advocate For Respondent (s) : Shri Alok Srivastava, Authorised Representative

For approval and signature :

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

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?

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

Date of Hearing / Decision : 24.04.2015

ORDER No. A/10390/2015 Dated 24.04.2015

Per : Mr. P.K. Das;

After hearing both the sides and on perusal of the records, I find that the adjudicating authority rejected the refund claim of Rs. 29,12,862/-, on merits and on limitation. Commissioner (Appeals) held that appellant is eligible for refund claim on merits and also on limitation. But, it is hit by principles of unjust-enrichment.

2. Learned Advocate on behalf of the appellant submits that both the authorities below have not considered their submissions on unjust-enrichment. He further submits that it is well settled law that principle of unjust-enrichment would not applicable in the case of inter unit transfer of goods.

3. I find that this issue was not examined by both the authorities below. Hence, it is appropriate that the matter should be remanded to the adjudicating authority to examine unjust-enrichment on the basis of the submissions made by the appellant. In view of that, impugned order passed by the Commissioner (Appeals) is modified insofar as rejection of refund claim on unjust-enrichment is set-aside. The adjudicating authority is directed to examine the principle of unjust-enrichment in de-novo proceedings. Needless to say that the adjudicating authority shall give proper opportunity of hearing before passing the order.

4. Appeal is allowed by way of remand.

(Order dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) .KL

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