TaxTMI 
TaxTMI 
2023 (8) TMI 898
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....icable and excess duty paid under the compounded levy scheme is to be treated as excess deposit. It is further observed that the Hon'ble Supreme Court in the case of Shri Bhagwati Steel Rolling Mills vs Commissioner of C. Ex [2015 (326) ELT 209 (SC)], inter alia, held at para 30 to 31, as under. 30. On merits, the matter is no longer res integra. A Constitution Bench decision of this Court in VVS Sugars v. Government of A.P., 1999 (4) SCC 192, has held, following two earlier judgments of this Court, as follows :- "This Court in India Carbon Ltd. v. State of Assam [(1997) 6 SCC 479] has held, after analysing the Constitution Bench judgment in J.K. Synthetics Ltd. v. CTO [(1994) 4 SCC 276] that interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf. There being no substantive provision in the Act for the levy of interest on arrears of tax that applied to purchases of sugarcane made subsequent to the date of commencement of the amending Act, no interest thereon could be so levied, based on the application of the said Rule 45 or otherwise." 31. Applying ....
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....Authorities created & functioning under the Central Excise Act, 1944, cannot go beyond the Act and are bound its provisions. 4.4 Thus, when general provisions of teh Central Excise Act, 19444 are not applicable and there is no provision for payment of interest on refund under compounded levy scheme, I find that the adjudicating Authority created & functioning under the Central Excise Act, 1944, could not have allowed inertest on refund. Even otherwise, if the general provisions of the Central Excise Act, 1944 are applied, there is no delay in sanctioning the refund, as the refund has been allowed on 19.03.2019 which is within three months of the date of the letter dated 10.01.2019 of the appellant filed along with the aforesaid Final Order dated 07.08.2018 of the Hon'ble Tribunal. 4.5 I also find that the Hon'ble Supreme Court in the case of Commissioner of Income Tax, Gujarat vs Gujarat Fluoro Chemicals [2013 (296) ELT 433 (SC)], clarified their earlier decision in the case of Sandvik Asia Ltd. vs Commissioner [2006 (196) ELT 257 (SC)] as under: Refund - Interest on delayed refund only when statute provides - Sandvik Asia Ltd. [2006 (196) E.L.T. ....
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..... His representation was turned down stating that he has not objected to fixation either at the time of provisional fixation or subsequently prior to final fixation. Hence the matter has attained finality. 09.08.2002 Appellant challenged the order date 21.03.1998 before tribunal. Tribunal vide its order set aside the order of Commissioner, and remanded the matter back to Commissioner for redetermination. 29.09.2003 Commissioner in remand proceedings again fixed the same ACP and MDL as was done by the earlier order of 21.03.1998 19.01.2004 Appellant filed appeal to the tribunal which was allowed and the matter was remanded back to commissioner for decision afresh. 29.07.2004 Commissioner directed the Assistant Commissioner to re-determine ACP and MDL 15.09.2004 Assistant Commissioner re-determined the ACP as 32670.848 MT and MDL at Rs 17,01,607/- and requested the Commissioner to issue the order as per Rule 3(4) and 4 of the Induction Furnace Annual capacity Determination Rules, 1997. 28.10.2009 Commissioner re-determined the ACP as 43174.27 MT and MDL as Rs 22,48,868/- as was done earlier vide order of 21.03.1998 25.06.2010 CESTAT remanded ....
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....hing on record to show, if such duty amount included in the refund claim, has been returned back to the respective customers in any manner. Therefore, I find the bar of Unjust enrichment is applicable in the instant case. 7.1 The Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. 205 (181) ELT 328 (SC) held as under: "The doctrine of 'unjust enrichment', therefore, is that no person can be allowed to enrich inequitably at the expense of another. A right of recovery under the doctrine of 'unjust enrichment' arises where retention of a benefit is considered contrary to justice or against equity. ....... it is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of ....
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....66/- only, which is the differential duty related to the past clearances and price already charged, but it cannot be said that this much amount was not received {being included in the value/ price] from their customers. 10. As regards the Chartered Accountant's certificate (of 03.10.2011 - Exhibit 'C' of written submission)- "e certify that central excise duty paid during compounded levy period was not charged either from the buyer or shown separately in the invoices issued""same is not acceptable because the prices mentioned on invoices were inclusive of central excise duty and neither the appellants nor the Chartered Accountants has adduced any evidence or material to demonstrate as to how the prices at the time of clearance did not include component of Central Excise duty. 14. Therefore in view of above discussion the observations and findings regarding unjust enrichment forming part of the impugned order-in-original dated 28.04.2011 are sustainable. 12. In view of above I find no reason to interfere with the order in original dated 28.04.2011 and therefore refuse to allow the appeal." 3.5 This order of Commissioner (Appeal) was challeng....
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....s of erstwhile Section 3A of the Central Excise Act, 1944 has been held to be comprehensive self contained scheme as per the decision of Hon'ble Supreme Court in case of Shri Bhagwati Steel Rolling Mills [2015 (326) ELT 209 (SC)]. 3.8 From the facts as stated above the entire proceedings in the matter are in respect of Application for Refund filed by the appellant under Section 11B of the Central Excise Act, 1944 on 06.09.2010. Revenue has throughout treated the application to be made in under Section 11B and even the order dated 19.03.2019 allowed the refund in favour of appellant holding that the refund is to be sanctioned in favour of the appellant as per the section 11 B of the Central Excise Act, 1944. Undisputedly erstwhile Section 3 A (5) of the Central Excise Act, 1944 read as follows: "(5) Where the Commissioner of Central Excise determines the actual production under sub-section (4), the amount of duty already paid, if any, shall be adjusted against the duty so re-determined and if the duty already paid falls short of, or is in excess of, the duty so re-determined, the assessee shall pay the deficiency or be entitled to refund, as the case may be." The ....
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....o. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court.'' 3.9 Adjudicating Authority has in his order in para 2, very categorically sated that the letter dated 10.01.2019 forwarding the decision dated 07.08.2018 of the tribunal was in reference to the refund claim filed by the appellant on 06.09.2010. Section 11BB of the Central Excise Act, 1944 is reproduced below: "Section 11BB. Interest on delayed refunds. - If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) ....
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....ot vacated. Therefore, the refund claimed at that time was premature. In terms of provisions of Section 11BB, interest is payable if any duty ordered to be refunded under Section 11B is not refunded within three months, from the receipt of the application. In the instant case, the appellant has challenged the orders of the Dy. Commissioner and Commissioner (Appeals). The refund has arisen only when the Dy. Commissioner passed the order on the basis of CESTAT order No. A/354/WZB/04-C-II dt. 20-5-2004 vide OIO No. SRT-V/ADJ-44/2004-F.A. dt. 29-10-2004 and re-determined the Annual Capacity of Production by excluding the length of gallery portion. Thereafter, the appellant filed the refund claim on 5-3-2005 which was sanctioned to them. Therefore, the three months period under Section 11BB is upto 4-6-2005." The fresh claim has been made in pursuance of the directions of the Hon'ble High Court in their order dt. 29-8-2002. The decision of the Commissioner (Appeals) is that the refund become admissible only after finalization of APC and hence the date of the fresh claim submitted by the appellant in pursuance of the order of the Hon'ble High Court shall be relevant date for the....
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....ELT 486 (T-Chennai)] (iv) Madura Coats Pvt Ltd [2012 (285) ELT 188 (Cal)] (v) Shree Wood Products Pvt Ltd [2016 (340) ELT 79 (P&H)] (vi) Ebiz.Com Pvt [2017 (49) STR (ALL)] (vii) Sheela Foam Pvt Ltd [2003 (154) ELT 522 (T-LB)] 3.13 In view of the decision of Hon'ble Apex Court in the case of Mafatlal Industries I do not find any merits in the submissions made by the appellant. It is settled position in law that tribunal being a creature of the statute cannot decided the issues against the express provisions in law. Hon'ble Supreme Court has in the case of Northern Plastics Ltd [1997 (91) E.L.T. 502 (S.C)] held as follows: "8. At the outset it must be kept in view that appeal is a creature of statute. The right to appeal has to be exercised by persons permitted by the statute to prefer appeals subject to the conditions regarding the filing of such appeals. We may in this connection usefully refer to a decision of four learned Judges of this Court in the case of The Anant Mills Co. Ltd. etc. etc. v. State of Gujarat & others etc. etc. [AIR 1975 S.C. 1234 = (1975) 2 SCC 175]. In that case Khanna, J., speaking for the Court had to ....
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....mental right or under Article 226 before High Courts which also offers a constitutional remedy cannot be imported for deciding the right of appeal under the statutory provisions contained in the Customs Act. Whether any right of appeal is conferred on anyone against the orders passed under the Act in the hierarchy of proceedings before the authorities has to be judged from the statutory settings of the Act and not de hors them. Therefore, in our view, the High Court in the impugned judgment had erred in drawing the analogy from the more elastic concept of locus standi under Article 32 or Article 226 evolved by this Court by its decisions on the subject. It is also to be appreciated that the decision of this Court in Bar Council of Maharashtra v. M.V. Dabholkar etc. etc. [AIR 1975 S.C. 2092] was based on an entirely different statutory scheme. For judging the competence and locus standi of the Union of India or the HPF for moving appeals before CEGAT against the order of Additional Collector of Customs passed under Section 122 of the Act the answer must be found from within the four corners of the Act itself. 10. We have, therefore, to turn to the scheme of the Act providin....