2020 (1) TMI 1448

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....oduction of crude oil and natural gas. The Respondent is liable to pay Oil Industry Development Cess ("OID Cess) on the quantity of crude oil sold to the refineries as per section 15(1) of the Oil Industry Development Act, 1974 ('the OID Act'). Further, the respondent was also liable to pay Education Cess ('EC') and Secondary and Higher Education Cess ('SHEC') at the rate of 2% and 1% respectively of all duties on excise leviable by the Ministry of Finance (Department of Revenue). The Respondent was under a bonafide belief that EC and SHEC is payable on OID Cess as a duty of excise levied by the Ministry of Finance (Department of Revenue). Thus, the Respondent initially discharged EC and SHEC on OID Cess. In 2004, a clarification was issued....

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....3 under Section 11B of the Central Excise Act, 1944. 2. Pursuant to refund claim, a Show Cause Notice ('SCN') dated 04.02.2015 was issued to the Respondent proposing to deny the refund of Rs. 2,52,66,33,609/- on the ground that such refund claim is hit by the element of 'unjust enrichment' as laid down in Section 11B(1) of the Act. Further, it was also alleged that major portion of the amount claimed as refund is time barred on the ground that the amount claimed is beyond one year from the relevant date as laid down in Section 11B(1) of the Act. The Respondent vide their letter dated 11.04.2015 filed detailed reply to the above SCN. Despite legal submissions made in the reply by the Respondent, the refund clailm filed by the Respondents wa....

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....sentative appearing on behalf of the appellant Revenue submits that Section 35A(3) of the Central Excise Act, 1944 as it existed before 11.05.2001 provides that Commissioner(Appeals) shall, after making such further enquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling decision or order appealed against or may refer the case back to the adjudicating authority with such direction as he may think fit for a fresh adjudication or decision as the case may be, after taking additional evidence, if necessary. 5. The learned Advocate appearing on behalf of the respondent has submitted that the present appeal involves a substantial refund amount to the tune of Rs. 2,52,66,33,609/-. The Depart....

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....thority is delay in passing the order from the date of personal hearing. 9. We observe that the issue is no more res integra and has been decided by the Hon'ble Hon'ble Supreme Court in the case of Mil India Ltd. vs. Commissioner of C.Ex., Noida reported in 2007 (210) E.L.T. 188 (S.C.). The relevant portion of the decision is extracted below:- "4. In our view the High Court had erred in holding that the Tribunal could not have examined the question of dutiability, once on merits, the order of the Commissioner (A) dated 22-3-2000 became final. Firstly, one must understand that excisability is a matter of principle. The Tribunal is the highest authority in hierarchy to decide on facts whether the bought out items were dutiable or not. The ....