Dsm Sugar (Kashipur) Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. the short point for determination in this appeal is whether rebate claim made under notification no. 132/82-c.e., dated 21-4-1982 is to be treated as refund claim under section 11b as concession extended to manufacturers under the notification appears to be a refund.2. the facts of the case in brief are that the appellants are engaged in the manufacture of sugar. under a notification issued by the government of india, the manufacturers were entitled to rebate of duty in case of production of sugar during the lean season was beyond a particular quantity. the department alleged that rebate is refund and is not admissible in view of amendment to section 11b. the authorities below held that rebate as admissible under the notification no. 109/87 dated 10-4-1987 was a refund and therefore was to be examined in terms of amended section 11b and is subject to examination whether the principles of unjust enrichment shall be applicable to this type of rebate.3. shri ashok sagar, ld. counsel submits that the issue has since been decided by the larger bench of this tribunal in the case of kesar enterprises ltd. & am. v. cce, kanpur & am. reported in [2000 (39) rlt 245]. ld. counsel submits that in that case under identical circumstances and facts of the case, larger bench of this tribunal held that a rebate claim made under notification no. 132/82 dated 21-4-1982 was not to be treated as refund claim under section 11b as the benefit extended to manufacturers under the notification is not refund. ld.counsel, therefore, prayed that the appeal of the appellants may be allowed.4. shri d.k. verma, ld. sdr reiterated the findings of the authorities below.5. we have heard the submissions of both sides. we note that identical issue came up before the larger bench of this tribunal on the question of rebate on sugar under notification no. 132/82 dated 21-4-1982 and the larger bench of this tribunal held that rebate under this notification is not a refund under section 11b which is not subject to examination whether it amounts to unjust enrichment. we note that in the instant case, rebate has been claimed under notification no.109/87. this notification is identical to notification no. 132/82 dated 21-4-1982 and since the larger bench of this tribunal has already decided the issue that the principles of unjust enrichment will not be applicable to a rebate claim under a similar notification, we hold that unjust enrichment principle will not be applicable in the instant case as it is not a refund under section 11b. in the circumstances, the appeal is allowed. consequential relief, if any, will be admissible to the appellants in accordance with the law.

Judgment:
1. The short point for determination in this appeal is whether rebate claim made under Notification No. 132/82-C.E., dated 21-4-1982 is to be treated as refund claim under Section 11B as concession extended to manufacturers under the Notification appears to be a refund.

2. The facts of the case in brief are that the appellants are engaged in the manufacture of sugar. Under a Notification issued by the Government of India, the manufacturers were entitled to rebate of duty in case of production of sugar during the lean season was beyond a particular quantity. The Department alleged that rebate is refund and is not admissible in view of amendment to Section 11B. The authorities below held that rebate as admissible under the Notification No. 109/87 dated 10-4-1987 was a refund and therefore was to be examined in terms of amended Section 11B and is subject to examination whether the principles of unjust enrichment shall be applicable to this type of rebate.

3. Shri Ashok Sagar, ld. Counsel submits that the issue has since been decided by the Larger Bench of this Tribunal in the case of Kesar Enterprises Ltd. & Am. v. CCE, Kanpur & Am. reported in [2000 (39) RLT 245]. Ld. Counsel submits that in that case under identical circumstances and facts of the case, Larger Bench of this Tribunal held that a rebate claim made under Notification No. 132/82 dated 21-4-1982 was not to be treated as refund claim under Section 11B as the benefit extended to manufacturers under the Notification is not refund. Ld.

Counsel, therefore, prayed that the appeal of the appellants may be allowed.

4. Shri D.K. Verma, ld. SDR reiterated the findings of the authorities below.

5. We have heard the submissions of both sides. We note that identical issue came up before the Larger Bench of this Tribunal on the question of rebate on sugar under Notification No. 132/82 dated 21-4-1982 and the Larger Bench of this Tribunal held that rebate under this Notification is not a refund under Section 11B which is not subject to examination whether it amounts to unjust enrichment. We note that in the instant case, rebate has been claimed under Notification No.109/87. This Notification is identical to Notification No. 132/82 dated 21-4-1982 and since the Larger Bench of this Tribunal has already decided the issue that the principles of unjust enrichment will not be applicable to a rebate claim under a similar Notification, we hold that unjust enrichment principle will not be applicable in the instant case as it is not a refund under Section 11B. In the circumstances, the appeal is allowed. Consequential relief, if any, will be admissible to the appellants in accordance with the law.