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 Law /2016-17/3410

Whether the clause of unjust enrichment will apply on finalization of provisional assessment under Rule9b and refund will allowable if clearances was made in 1991 ?

Case- COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III VersusFGP LTD.
 
Citation- 2016 (342) E.L.T. 308 (Tri. – Mumbai)

Brief Facts- These two appeals are filed by the Revenue as well as the appellant-assessee against the very same order-in-appeal. Accordingly, both the appeals are taken up for disposal by a common order.
The issue involved in this case is that during the  period 29-2-1988 to 5-11-1990, the appellant-assessee was engaged in the manufacture of “chopped strand mat” (hereinafter referred to as the final product); during the process of manufacturing an intermediate product, glass filament was manufactured. The excisability of this product is in dispute. The appellant was directed to pay the duty “under protest”. They filed a classification list wherein they sought provisional assessment of the goods which was acceded to by the lower authorities. All the procedures required for the provisional assessment were complied by the appellant. The excisability of the product was settled by the lower authorities in favour of the appellant-assessee who immediately filed refund claims of the amounts which were paid by them “under protest”. The Assistant Commissioner allowed the refund claims, but credited the same to the Consumer Welfare Fund on the ground that the appellant-assessee has not been able to pass the hurdle of unjust enrichment. On an appeal, the first appellate authority, out of the refund of approximately Rs. 91.99 lakhs, allowed the refund claim of Rs. 75 lakhs and ordered for reversal of Modvat credit of Rs. 16.11 lakhs. This was done so by the first appellate authority on an order of remand from the Tribunal. Against such order of reversal of Rs. 16 lakhs, the appellant is before the Tribunal, while the Revenue is before the Tribunal against the sanction of refund claim of Rs. 75 lakhs.

Appellant’s Contention-Main contention of the Revenue is that the assessee had wrongly claimed that the goods were assessed provisionally. He would then draw our attention to the provisions of Rule 233B of the erstwhile Central Excise Rules, 1944 and submit that once a duty is paid under protest, the question of provisional assessment does not arise. It is his submission that unjust enrichment is also a question which has not been properly satisfied by the appellant-assessee and the provisions of Section 11B would be applicable in this case. He would rely upon the decisions of the Hon’ble Bombay High Court in the case of Bussa Overseas and Properties Pvt. Ltd. v. UOI - 2003 (158)E.L.T. 135 (Bom.) and Indian Dyestuff Industries Ltd. v. UOI - 2003 (161)E.L.T. 12 (Bom.).

Respondent’s Contention- The learned counsel would submit that the entire assessment of the intermediate product was provisional is evidenced from the classification-cum-price list filed by them and also various letters of the lower authorities. It is his submission that once the classification and the valuation were provisional, any amount arising as refund out of finalization of the provisional assessment will not attract the hurdle of unjust enrichment as hurdle of unjust enrichment was brought into Rule 9B in 1999, while they have filed the refund claims in 1991. He would submit that the law is now squarely settled on this issue.

Reasoning of Judgement- On consideration of the submissions made by both sides, The Hon’ble court  find that as regards the Revenue’s appeal against the sanctioning of refund claim of Rs. 75 lakhs, this has no merits inasmuch as that there is no dispute that the clearances affected by the appellant-assessee had been under provisional assessment as per Rule 9B of the erstwhile Central Excise Rules, 1944. Under the said Rule, an assessee can seek provisional assessment and on finalization, either excess duty paid by him has to be refunded or short payment has to be paid by him to the Government. The factor of satisfying that unjust enrichment does not arise on the finalization of the provisional assessment was brought into Rule 9B in the year 1999. It is undisputed that the refund claims were filed by the appellant in 1991. The law is now settled that the provisions of Rule 9B before the amendment of bringing the question of unjust enrichment cannot be applied for rejecting the refund claims arising out of provisional assessment. On this ground, we hold that the Revenue’s appeal is devoid of merits and is rejected.
6.As regards the appellant-assessee’s appeal, we find  that the first appellate authority has directed the appellant-assessee to reverse the Cenvat credit taken by them on the inputs used in manufacture as intermediate products were exempted from payment of duty. In fact, the factual matrix is that the appellant-assessee had used this credit for discharging the duty liability on the intermediate products which were held subsequently as non-excisable/non-dutiable but further consumed in manufacture of final product “chopped strand mat” which is excisable. In view of this, having paid the duty and provisional assessment being finalized in their favour, we hold that the impugned order to the extent challenged by the appellant-assessee is liable to be set aside and we do so.
7.Revenue’s appeal is rejected and the assessee’s appeal is allowed.
 
Decision- Appeal rejected

Comment- The gist of the case is that the assessee has made clearance under provisional assessment (rule 9b) and had paid duty “under protest” in 1990 and also filed the refund of same in 1991 when excisability was settled in favour of assessee. The clause of satisfying that unjust enrichment does not arise on finalization of provisional assessment was brought into Rule 9B ibid in the year 1999and refund was filed in 1991. Therefore the question of unjust enrichment cannot be applied for rejecting refund claims arising out of provisional assessment. Hence appeal is allowed in favour of assessee.
Prepared by- Akshit Bhandari
 
 

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