2020 (4) TMI 342 - HC - Central Excise

Tribunal Dismisses Appeal on Excise Duty Refund Issue

The Commissioner, Goods and Services Tax Commissioner, Rohtak Versus Gawar Construction Limited, Hisar

The appeal against the Tribunal's decision allowing the respondent's appeal and setting aside the Revenue's order rejecting a refund application for ... Refund of Central Excise duty - benefit of N/N. 108/95, dated 28.08.1995 - exemption from excise duty to the goods supplied to UN or an International Organization subject to certain conditions - principles of unjust enrichment - HELD THAT:- The Tribunal rightly found that merely because the notification is termed as exemption notification, it does not bar any person who may have wrongly paid duty to seek refund. As regards plea of bar of jurisdiction and incompetent authority, the Tribunal found that firstly assessee moved an application to the Director General of Foreign Trade which was a wrong Forum to seek this refund but it did show that assessee was not acquiescent about its claim. Principles of unjust enrichment - HELD THAT:- The Tribunal found that alongwith the refund application, the respondent- assessee had appended a certificate from the Chartered Accountant attesting to the fact that the duty which has been paid, has been borne by the assesee and not passed on to anybody else. In the face of evidence of the assesee and lack of any evidence led in this behalf by the Revenue, this was a purely presumptive finding - Appeal dismissed. Issues:1. Appeal against Tribunal's order allowing respondent's appeal and setting aside Revenue's order rejecting refund application for duty wrongly paid.2. Questions of law regarding the final order of CESTAT, availability of exemption post non-provision in notification, jurisdiction and time limit for refund claim, unjust enrichment test, and justification of Tribunal's order.3. Interpretation of exemption notification No.108/95 for excise duty exemption on goods supplied to UN or an International Organization.4. Rejection of refund claim by Assistant Commissioner based on exemption notification, time bar, and unjust enrichment.5. Tribunal's findings on the right to seek refund despite the notification being termed as an exemption, jurisdictional issue, and unjust enrichment evidence provided by the assessee.6. Disagreement on unjust enrichment rejection by authorities due to lack of evidence from Revenue and presumptive finding based on burden percentage.7. Dismissal of appeal due to lack of substantial question of law arising from the case.Analysis:The judgment involves an appeal against the Tribunal's decision, where the Tribunal allowed the respondent's appeal and set aside the Revenue's order that rejected the refund application for duty wrongly paid. The questions of law raised included the fairness and legality of the CESTAT's final order, availability of exemption post non-provision in the notification, jurisdiction and time limit for the refund claim, unjust enrichment test, and the justification of the Tribunal's order. The case revolved around the interpretation of exemption notification No.108/95, which provides an exemption from excise duty for goods supplied to UN or an International Organization under specific conditions.The Assistant Commissioner had initially rejected the refund claim citing reasons such as the notification only allowing exemption and not refund, the claim being time-barred, and the claim falling under the doctrine of unjust enrichment. However, the Tribunal found that the notification being termed as an exemption did not bar seeking a refund for wrongly paid duty. The Tribunal also noted the jurisdictional issue and the evidence of unjust enrichment provided by the assessee, including a certificate from a Chartered Accountant confirming the burden borne by the assessee.The rejection of the unjust enrichment argument by the authorities was based on the presumption that the burden of duty must have been passed on to the purchaser due to the duty percentage. However, the dismissal of the appeal was justified as there was evidence supporting the assessee's claim and a lack of evidence from the Revenue to counter it. The judgment concluded that no substantial question of law arose from the case, leading to the dismissal of the appeal and disposal of any pending applications.