Commissioner of Central Excise Vs. Onida Saka Ltd.

Commissioner of Central Excise vs Onida Saka Ltd.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided Dec 16, 2004

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Citation: sooperkanoon.com/37405
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: A T V.K., P Bajaj
Decided On: Dec 16, 2004
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Onida Saka Ltd.

Legal References

Reported In: (2005)(180)ELT397TriDel

Excerpt

.....the duty was deposited by the respondents much earlier to the initiation of the demand proceedings and that even after the remand of the case by the tribunal vide final order dated 4-5-2001, no adjudication has taken place and there being no confirmed duty demand against the respondents, they are entitled to the refund of the amount.3. we have heard both the sides and gone through the records. we find that the respondents deposited the duty amount by debiting the same under protest under rule 233-b of the rules as per the audit objection, but so far the department has not been able to sustain that objection and confirm the duty demand against them. after the remand of the case by the tribunal through the remand order, the adjudication has not been finalised. since, no duty amount is outstanding against the respondents, for debarring them from claiming the refund of the duty already deposited by them under protest, the commissioner (appeals) has rightly observed that the refund claim of the respondents is not premature.4. however, we find that commissioner (appeals) has not gone into the question of unjust enrichment. the refund can be allowed to the respondents only if the same is not hit by the principle of unjust enrichment. therefore, for ascertaining if the duty incidence had been passed on by the respondents to the ultimate consumers or not, the matter, in our view, deserves to be sent back to the adjudicating authority.5. in the light of the discussion made above, the impugned order of the commissioner (appeals) accordingly stands modified and the matter is sent back to the adjudicating authority for deciding the refund claim of the respondents after examining the applicability of principle of unjust enrichment.

Full Judgment

1. In this appeal the Revenue has contested the validity of the impugned order-in-appeal vide which the Commissioner (Appeals) has reversed the order-in-original and allowed the refund claim of the respondents with interest.

2. The learned SDR has contended that since the adjudication proceedings for the duty demand are pending against the respondents on remand by the Tribunal, the refund claim could not be allowed being premature. Therefore, the impugned order deserves to be set aside. On the other hand, the learned Counsel has argued that the duty was deposited by the respondents much earlier to the initiation of the demand proceedings and that even after the remand of the case by the Tribunal vide Final Order dated 4-5-2001, no adjudication has taken place and there being no confirmed duty demand against the respondents, they are entitled to the refund of the amount.

3. We have heard both the sides and gone through the records. We find that the respondents deposited the duty amount by debiting the same under protest under Rule 233-B of the Rules as per the audit objection, but so far the department has not been able to sustain that objection and confirm the duty demand against them. After the remand of the case by the Tribunal through the remand order, the adjudication has not been finalised. Since, no duty amount is outstanding against the respondents, for debarring them from claiming the refund of the duty already deposited by them under protest, the Commissioner (Appeals) has rightly observed that the refund claim of the respondents is not premature.

4. However, we find that Commissioner (Appeals) has not gone into the question of unjust enrichment. The refund can be allowed to the respondents only if the same is not hit by the principle of unjust enrichment. Therefore, for ascertaining if the duty incidence had been passed on by the respondents to the ultimate consumers or not, the matter, in our view, deserves to be sent back to the adjudicating authority.

5. In the light of the discussion made above, the impugned order of the Commissioner (Appeals) accordingly stands modified and the matter is sent back to the adjudicating authority for deciding the refund claim of the respondents after examining the applicability of principle of unjust enrichment.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Commissioner of Central Excise vs Onida Saka Ltd. Same Subject Service Tax Same Judge A T V.K., P Bajaj