Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1305

Sustainability of rejection of refund in consequential proceedings for unjust enrichment

Case: B. S. Processors v/s Commissioner of C. Ex., Ahmedabad
 
Citation: 2011(270) E.L.T. 289 (Tri.-Ahmd.)
 
Issue:- Refund of excess duty paid – Refund claim granted earlier and no unjust enrichment occurred settled in earlier proceedings – consequential refund granted set aside on the same ground of unjust enrichment in subsequent proceedings – not sustainable.
 
Brief Facts:- Appellant is engaged in processing of fabrics and they started their factory w.e.f. 7-9-2000. As the processed fabrics were under Compounded Levy Scheme during the relevant period, they applied for fixation of Annual Production Capacity. The same was fixed by the Commissioner w.e.f. 11-9-2000. As such, the appellant was required to pay the duty under Compounded Levy Scheme w.e.f. 11-9-2000 onwards. However, they paid the duty erroneously for the entire month of September 2000.
 
Subsequently, they filed a refund claim for Rs. 80,000/- (Rupees Eighty Thousands only) in respect of excess duty paid by them for the period up to 11-9-2000. The refund claim was allowed but was ordered to be credited to Consumer Wel­fare Fund. In appeal, the Commissioner (appeals) allowed the appeal on the ground that the appellant were not required to pay any duty for the impugned period and the incidence of duty was also not passed on since there was no production and clearance during the said time.
 
In terms of said Order-in-Appeal, appellants again approached Revenue Department for grant of refund and refund was granted to them.
 
Thereafter, fresh proceedings were initiated against the appellant on the ground that the refund of Rs. 80,000/- (Rupees Eighty Thousands only) was erroneously sanc­tioned to the appellant and was required to be recovered under Section 11A of Central Excise Act. The order was passed by Assistant Commissioner confirming demand of erroneous refund of Rs. 80,000/- (Rupees Eighty Thousands only), on the ground that the appellant has not satisfied the angle of unjust enrichment and has failed to submit any proof on record to show that the said duty has not been recovered by them from their customers. The impugned order was confirmed by the Commissioner (Appeals).
 
Hence, appellant is before the Tribunal.
 
Reasoning of Judgement:- The Tribunal found that vide the ear­lier order dated 11-6-03, the Commissioner (Appeals) has already held in favour of assessee on the issue of unjust enrichment. And in the second proceedings refund was disallowed only on the ground of unjust enrichment. The said issue having been decided in favour of the assessee by earlier order of Commis­sioner (Appeals), the subsequent grant of refund to the assessee was as a conse­quential relief in terms of Commissioner (Appeals)'s order. It is also on record that the earlier order of the Commissioner (Appeals) was never put to challenge by Revenue before Tribunal and as such the same had attained finality. In these circumstances, it was not open to the department to initiate proceedings against the assessee on the same very issue of unjust enrichment in respect of same refund. In fact, the said issue was the subject matter of first order of Assistant Commissioner, which stand set aside by Commissioner (Appeals) vide his order dated 11-6-03. In terms of said order, the appellant became entitled to refund, as a consequential relief. As such, refund was given to the appellant as a consequen­tial relief of allowing of his appeal by Commissioner (Appeals). The said order of Commissioner (Appeals) having not been challenged by Revenue, the same very issue could not have been decided by authorities by restarting proceedings again by issuance of Show Cause Notice. Apart from the above, Tribunal also find favour with the appellant's contention that the appellant having started their factory on 7-9-00 and their Annual Production Capacity fixed w.e.f. 11-9-00 and there being no production during the period from 1-9-00 to 7-9-00, the question of clearance of goods and payment of duty does not arise at all. Further as no duty was paid on account of non-production of any goods, the question of recovery of the same from the customers does not arise. As such, even on merit, Tribunal found favour with the appellant's contention. Impugned order set aside.
 
Decision:- Appeal allowed with consequential relief.

Comments:- This is very interesting case when the show cause notice on the same ground for same amount is  once again issued by the department. We have come across the cases where the settled issue in favour assessee in tribunal and High courts has once again started by the department. We have told specifically to the department that if such type of demand is coming than we will move to court rather than once again clearing the process of adjudication, commissioner (Appeal) and tribunal. The department cannot start the legal battle once again on settled issue. But this is unique case where the demand for same period on same period is raised once again. I remember the remarks of a appellate authority in case of demand on created ground that you will accept that our field formation is very innovative. But this type of innovation proves very costlier on poor assessee. We have always pleaded for accountability on government employees. If a demand is dropped then the cost should be recovered from the officer who has raised the demand.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com