TaxTMI 
TaxTMI 
2009 (6) TMI 916
X X X X Extracts X X X X
X X X X Extracts X X X X
....on Cess from their Cenvat Credit Account vide entry No. 345 dated 24-7-2006 and interest of Rs. 14,594/- vide TR6 challan No. 4 dated 27-7-2006 and further continued to pay the duty at the same rate; that the appellant, vide SCN dated 2-8-2007, was directed to pay the differential amount of Education Cess on the clearances effected during July, 2006 after calculating excise duty hi 25% of BCD + CVD + SAD and Education Cess on BCD and Education Cess on CVD on the basis of formula mentioned in the SCN; that the appellant realized that they have paid differential duty wrongly on the basis of RO's letter dated 17-1-2006 and there is an excess payment during the period from 1-11-2005 to 26-4-2006 and hence, filed a refund claim for the said amount (i.e. Rs. 2,53,586/- BED + Rs. 20,035/- Education Cess and interest of Rs. 14,594/-); that since the refund claim was filed after a lapse of one year i.e. on 17-8-2007, the appellant was directed to show cause as to why the same should not be rejected which is hit by limitation and also the appellant has not shown/filed along with the refund claim any evidence that they have not passed on the incidence of duty to any other person but borne by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; Jindal Vijayanagar Steel Ltd. v. CCE [2006 (206) E.L.T. 1039 (Tri. Bang.)] (d) CCE v. Pandiyan Roadways Corporation Ltd. [2003 (152) E.L.T. A84 (S.C.)]; (v) that in view of the above decisions, that what was paid by the appellant is only 'deposit' and not 'duty' of excise and hence, Section 11B is inapplicable; (vi) that further merely filing refund claim under Section 11B, will not lead to conclusion that it was only for duty of excise and the appellant relies on the decision of the Tribunal in the case of M/s. Mahavir Vanaspati Company v. CCE [2008-TIOL-1995-CESTAT-Delhi) = 2009 (239) E.L.T. 91 (Tri.)]; (vii) that without prejudice to the above, the appellant submits that as the amount towards duty was paid subsequent to the clearances of goods (during the adjudication proceedings), it cannot be stated that the assessee has recovered amount from its customers and the appellant relies on the decision of the Hon'ble Gujarat High Court in the case of Parle International Ltd. [2001 (127) E.L.T. 329 (Guj.)]; (viii) that without prejudice to the above, the appellant submits that it is settled posit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e to the said letter, his client filed refund application dated 16-8-2007 and hence there cannot be any time-bar attached to the refund claim, inasmuch as whatever amount paid was not qualified as the "duty" and also the question of filing of refund application had arisen only on account of subsequent SCN dated 2-8-2007. 3.2 As regards the principle of 'unjust enrichment', though it was raised in the SCN, and also his client replied on this matter, no findings were given by the Assistant Commissioner in his OIO. 3.3 During the course of hearing, they have also submitted case laws, which are applicable to the issue on hand. 4. I have gone through the case records including record of PH and the citations relied upon by the appellant. Before coming to a conclusion, the facts which led to issuance of SCN and rejection of refund claim on account of limitation have to be recaptured. The appellant is an EOU and during the period from September, 2005 to April, 2006 was clearing his final products to DTA at concessional rate in terms of Notification No. 23/2003-C.E., dated 31-3-2003; that the Range Officer, Chiplun vide his letter No. CEX/R-II/USV-100/CORRS/05-06, dated 17-1-2000 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Gujarat High in the case of Parle International Ltd. [2001 (127) E.L.T. 329 (Guj.)], the appellant has not recovered the said amount from his customers and hence not enriched by himself; that the appellant further submits that merely because the amount has been shown as 'expenditure' in the Profit and Loss Account, does not establish that the amount has been recovered as duty from the customers and the appellant relies on decisions mentioned at para 2(viii) supra. 4.2 From the recapture of the events narrated above, it is clear that the appellant has debited BED and cess from their Cenvat Credit Account and paid the interest vide TR6 challan on the basis of RO's letter dated 17-1-2006. These facts are not disputed. Once the payments paid are not under dispute, next question arises whether the above amount could be considered as excise duty. The lower authority has held that since the appellant has debited duty and cess from their Cenvat Credit Account and interest vide TR6 challan, the refund application should have been filed within one year's period as envisaged under Section 11B of the Act. From the above conclusion, it follows that what was paid/debited by the appellant,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....GAT order No. 468/97-B1, dated 7-3-1997 and reported in 2002 (150) E.L.T. 186 (Tri.-Delhi) was dismissed and upheld the Tribunal's decision wherein the Tribunal held that the excise duty liability raised on the RT-12 returns cannot be fastened without issue of SCN and providing of an opportunity of PH. Initially the Collector had held that the assessee should have filed the refund claim and not the appeal against assessment of the RT-12 returns". 4.3 All the above decisions are directly applicable to the issue on hand. The Apex Court in the case of Pandiyan Roadways Corporation Ltd. mentioned supra upheld the decision of the Tribunal that "the extra duty liability raised on RT12 returns cannot be fastened without issue of SCN and providing of an opportunity of PH". In the instant case also, the duty was paid on the basis of letter of RO. The Hon'ble Tribunal, Bangalore in the case of Jindal Vijaynagar Steel Ltd. v. CCE [2006 (206) E.L.T. 1039 (Tri.-Bang.)] held that "mere appropriation by Revenue without any demand raised or confirmed in terms of SCN will not change the character of deposit during investigation". Further it is held that "Section 11B is not applicable for the amo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2007. Another strange thing noticed is that the SCN dated 2-8-2007 has made no reference with reference to the amount deposited by the appellant as per directions of the RO. The period of limitation has to be reckoned with only from the date of 'cause of action' is supported from the following decisions:- (a) CCE, Pune v. Ispat Profiles India Ltd. [2007 (220) E.L.T. 218 (Tri.-Mumbai)] - "The date of reversal of credit by customer should be considered as date of payment of duty giving rise to cause of action - Payment of duty by assessee did not give rise to any cause of action and that the date was irrelevant", (b) CCE v. Gehring India Ltd. [2000 (119) E.L.T. 501 (Tri.-Del.)] - "Relevant date for refund is the date of payment of duty vide supplementary invoice and not the date of removal of goods - Refund claim filed within six months from such date is not barred by limitation - Section 11B of CEA, 1944", (c) Hexacom (I) Ltd. v. CCE, Jaipur [2006 (3) S.T.R. 131 (Tri.-Delhi)] - "There is no bar to the return of such amounts - Section 11B of CEA, 1944", (d) Karnik Maritime Pvt. Ltd. v. CCE, Mumbai-IV [2007 (6) S.T.R....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that "since the refund was rejected as time-barred, the other pleas advanced by the appellant were not taken for consideration". However, since the principle of unjust enrichment was raised in the SCN and the appellant filed his defence, it is imperative on the part of the Assistant Commissioner to give finding. But he has not done so. In this regard, the appellant relies on the decision of the Tribunal, Kolkata in the case of Cookme Enterprises v. CCE, Kolkata-V [2008 (223) E.L.T. 537 (Tri.-Kolkata)] wherein the Hon'ble Tribunal relying on the decision of the Hon'ble Punjab and Haryana High Court in the ease of CIT v. Palwal Co-operative Sugar Mills Ltd. [2006 (284) ITR 153 (P&H)] HELD :- "the requirement of recording of reasons and communication thereof has been read as an integral part of the concept of fair procedure. The necessity of giving reasons flows from the concept of rule of law which constitutes one of the cornerstones of our constitutional set up the requirement of recording of reasons by such authorities is an important safeguard to ensure observance of the rule of law - Another reason which makes it imperative for the quasi-judicial authorities to give reasons i....