ORDER
C. Satapathy, Member (T)
1. This is an appeal filed by the Department against the impugned order in appeal. We have heard both sides, the operative portion of the impugned order in appeal passed by the Commissioner (Appeals) is extracted below:
I have carefully considered the submissions made by the appellants. I find that refund has been rejected primarily on the grounds. 1) That the incidence was passed on to the customers in the form of cost of the final product inasmuch as entire Caippca i.e. 1,69,246 Kgs. was manufactured on 30th October itself and cleared subsequently and 2) That the refund claim was not filed in a proper form. As regards the first ground, I consider it to be factually incorrect. The appellants have given a detailed statement showing the production of Caippca from July 1989 to October 1990 which shows that quantity of 1,69,246 Kgs. of Caippca was produced between July 1989 to October 1990. It is a fact that duty was paid by the appellants before October 1990. The department has also not demanded duty for this period separately because duty was already paid under protest. Further, this quantity cannot be produced in a single day, as according to the appellants, the installed capacity is only 100 MT per month. In contrast it has been presumed that 169 tonnes of Caippca was produced in one day. This is, therefore, totally absurd. No corresponding production of Anilofos Tech after October 1990 has been shown. It has, therefore, to be presumed that this quantity was produced before October 1990 and was utilized in the manufacture of Anilofos Tech before October 1990 and once duty on Caippca was paid subsequent to October 1990, the question of including the incidence of duty in the cost of the final products simply does not arise. The appellants claimed that they have not recovered duty subsequently not the department has produced any evidence to show that the duty was indeed recovered subsequently. As regards the second ground, it is a fact that refund claim in complete format was filed in Junuary 1991. Since the Asstt. Commissioner’s order holding Caippca as dutiable was under challenge with the Commissioner (Appeals), the question of rejection of refund claim should not have arisen and gets revived once the Commissioner (Appeals)’s order is passed. Since the consequential relief was ordered, the appellants have claimed refund against in August 1993. Asstt. Commissioner has not spelt out what documents were lacking while finalizing this refund claim. It is the appellants’ contention that the duty paying documents were not returned to them at all. Therefore, once the duty paying documents were in possession of the department, the refund claim cannot be rejected for not being in the proper form.
In view of above, I allow the appeal and set aside the order of the Assisstant Commissioner.
2. Shri Vimlesh Kumar, learned S.D.R. challenges the impugned order on the ground that the refund application was not in proper proforma and there was no evidence that the incidence of duty was not passed on. Shri D.B. Shroff, learned Advocate states that the amount was paid under protest under one TR6 challan for the period July 1989 to October 1990 after removal of the finished goods earlier and subsequently appeal has been allowed by the Commissioner (Appeals) to the effect that intermediate goods were not chargeable to duty being non marketable. He also relies on the following case laws to support his arguments that the ground of unjust enrichment cannot be applied when the duty is subsequently paid:
1). Punjab Beverages (P) Ltd. v. C.C.E, Chandigarh .
2). Industrial Cables(I) Ltd. v. C.C.E., Chandigarh .
3). Easter Industries Ltd. v. C.C.E., Meerut 1999 (35) RLT 696 (CEGAT)
3. After hearing rival submissions and perusal of case records, we are satisfied that the Commissioner (Appeals) has passed a reasoned order taking into account all aspect of the case. We find that the department has not made out of a case requiring interference with the impugned order passed by the Commissioner (Appeals). As such, we dismiss the appeal filed by the Department.
(Pronounced in Court)