Judgment:
Archana Wadhwa:
1. After hearing both the sides duly representated by Sh.O.P Agarwal, ld. Chartered Accountant and Sh. B.S.Sharma, DR. I find that the dispute in the present appeal related the refund of duty of Rs. 43,577/-.
2. As per facts on record, appellant is engaged in the manufacture of SS cold rolling pattas falling under Chapter 72. They cleared the said product to their customers M/s. Virat Alloys Pvt. Ltd. on payment of duty of Rs. 43,577/-. The said M/s. Virat Alloys Pvt. Ltd. availed the credit of duty shown paid by the appellant. However, they were subsequently informed that in as much as the said product attracted nil rate of duty in terms of notification No. 3/2005-CE dt.24.02.2005, the manufacturer should not have paid the duty and subsequently M/s. Virat Alloys Pvt. Ltd. is not entitled to claim credit of the same. Accordingly M/s. Virat Alloys Pvt. Ltd. reversed the credit entry and issued debit note in favour of the present appellant by debiting their account books by Rs. 43,577/-.
3. As a result of above development, appellant failed refund claim of the said account. The same stands rejected by the Authority below, on the ground of unjust enrichment by observing that in as much as the appellant had collected the said amount from their buyers i.e. M/s. Virat Alloys Pvt. Ltd., the subsequent issue of debit note would not discharge the burden of unjust enrichment. The order of the Original Adjudicating Authority was upheld by Commissioner (Appeals). Hence the present appeal.
4. After hearing both the sides I find that the issue is no more res Integra. Suffice it to refer to latest decision of the Tribunal in the case of Commissioner of Central Excise Vs. Oriental Textile Processing Co. (P) Ltd. reported in 2019(176) ELT- 257 (Tri. Del.). Where in after considering the Tribunals decision in the case of Sangam Processors (Bhilwara) Ltd. Vs. Collector of Central Excise reported in 1994 (71) ELT-989(Tribunal) and Honble Supreme Court judgment on Rajasthan Processors (India) Ltd. Vs. Collector reported in 1994(70) ELT- A 182, the Tribunal observes as under:-
âThe appeal filed against connected matter involving similar issue was dismissed by the Apex Court and that is reported in Rajasthan Processor (India) Ltd. Vs. Collector-1994(70) ELT- A 182 as well as in Rajasthan Spinning and Weaving Ltd. Vs. Collector - 1999(112) ELT-A 115(S.C.). Once the laws having been clearly laid down that mere issuance of the credit notes subsequent to the collection of the duty incidents in terms of the invoices issued at the time of the sale of the goods do not amount to discharging the burden which is required to be discharged by the assessee, to come out of the principle of unjust enrichment applicable in such cases, merely because the buyers of the respondent had issued the debit notes and had made reference to such debit notes in their ledger books that itself can not be sufficient to say that the respondent had discharged their burden in that regard. The appellants, therefore, are justified in contending the consequent on the failure on the part of the respondent to establish the duty incident had not been passed over to the customers, the authorities below erred in dropping the proceedings. Being so, the order passed by the authority below is not sustainable and are liable to be set aside with consequential relief. Accordingly, the appeal succeeds. The impugned order along with the order of the Adjudicating Authority is set aside with the consequential relief.
5. In as much as in the present case there is no dispute that the duty was initially collected by the appellant from their customers, who had also availed cenvat credit and it was only subsequently that debit note were issued the lower authorities have rightly held the refund claim to be hit by the bar of unjust enrichment. As such, by following the above decision. I reject the appeal filed by the appellant.