2019 (9) TMI 279

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....icaments. They have cleared medicament namely Monopas 05 for export on 07/07/2013 and 09/07/2013 on payment of duty, under cover of ARE-I under claim of rebate and issued a Central Excise invoice in respect of said clearance. The appellant filed refund claim of duty paid on Monopas 05, claiming that said duty was paid by mistake. The said claim was rejected by the Original Adjudicating Authority on the ground that the appellant could not substantiate their claim regarding reversal of Cenvat Credit under Rule 6(3)(iii) of the Cenvat Credit Rules, 2004. The said order pointed out that the appellant had failed to produce the relevant calculation. The second ground for rejection of claim was that the goods cleared by the appellant were exempted....

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....Pharmaceuticals Unit-II also, there was erroneous payments of duty on such exempted goods and the same was recovered by Revenue. Finally, the impugned Order-in-Appeal rejects the refund claim. Ld. Counsel also relies on the decision of Tribunal in the case of Sparklers Ceramics Pvt. Ltd. v/s CCE, Pune-I 2011 (266) E.L.T. 394(Tri- Mumbai) to assert that so long as the fact of export is not challenged, the appellants are entitled to refund of duty under section 11B. He also relied on the decision in the case of Ruby Mills Ltd. 2015 (329) ELT 612 (Tri- Mum) wherein the principles and provisions of unjust enrichment were also held to be not applicable to the exports. He also relied on the decision of the Joint Secretary (Revisionary Authority o....

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....dged on the basis of the fact whether the appellant paid the duty voluntarily or otherwise. The admissibility of refund can be adjudged solely on the basis of the fact if the appellant liable to pay duty or not. In the present case, the appellant was not required to pay duty as the goods were exempted and therefore, he was within his rights to claim the refund of the said amount paid. 4.1 The other issue raised by the lower authorities relates to issue regarding reversal of Cenvat Credit on inputs. Lower Authorities have reached to a conclusion that the appellant have failed to establish that they have reverse the credit on such exempted goods by invoking Rule 6(3) of the Cenvat Credit Rules. It is seen that Rule 6(6)(v) exempted clearance....

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.... have cited various decisions. However, none of them relates to the application of the principle of unjust enrichment to exports. The decisions cited by the appellant in the case of Hawkins Cookers Ltd. 2004(176) ELT 191 (tri- Mum) relates to captive consumption. The decision cited in the case of Hindustan Alloys Manufacturing Co. Ltd. 1993 (68) ELT 262 (GOI) relates to rebate and not refund of duty. From the above decision, it is apparent that none of the case laws cited squarely cover the applicability of principle of unjust enrichment to the amounts of duty collected by the exporter from a foreign country. The appellants have also relied on the decision in the case of Balakrishna Textiles P Ltd. 2009 (239) ELT 279 (Tri-Ahmd.). It is seen....