COMMISSIONER OF CENTRAL EXCISE. Vs. OM PHARMACEUTICALS LTD.

JUDGEMENT

(1.) This appeal is by the revenue challenging the order passed by the Tribunal 2008 (232) E.L.T. 309 (Tri.-Chennai) which held that the Doctrine of Unjust Enrichment is not applicable to the facts of this case and therefore the Assessee is entitled to the refund of the duty paid under protest.

(2.) The Assessee is M/s. Om Pharmaceuticals Ltd. The Assessee cleared the 'self generated alcohol' an item which is not excisable. However when the Department insisted on payment of duty, they paid the amount 'under protest'. Thereafter the original authority held that the said amount was non-excisable and sanctioned a refund of an amount of Rs. 7,49,932/-. However, the amount was credit to the Consumer Welfare Fund on the ground of unjust enrichment. Aggrieved by this order, the Assessee preferred an appeal to the Tribunal contending that at the time of clearance of the goods, there was an understanding between the Assessee and the buyer. Consequent to the order of the original authority, the buyer raised debit notes on the Assessee for the amount of duty the Assessee had paid on preparations of self generated alcohols and passed on to it. Accordingly, the Assessee repaid the duty collected from the buyer and therefore, this is not a case of unjust enrichment. Accepting the said case, the Tribunal held that they have established their claim with documentary evidence i.e., in pursuance of the debit notes raised by the buyer, they have repaid the duty paid by him to the Assessee and therefore a case of unjust enrichment is not made out from the facts of this case and as such, they were entitled for refund. Accordingly, the Tribunal has ordered for refund. Aggrieved by the said order, the revenue is in appeal.

(3.) The learned Counsel for the revenue assailing the impugned order contends that in view of the judgment of the Apex Court, the Assessee is not entitled to the amount ordered to be refunded on the ground of unjust enrichment and as such, the order passed by the original authority is in accordance with law and the Tribunal has committed an error in affirming the said order.