COMMISSIONER OF CENTRAL EXCISE Vs. SPIC PHARMACEUTICALS DIVISION

JUDGEMENT

(1.) THE respondents in this appeal are engaged in the manufacture of excisable goods and are availing Cenvat credit on inputs and capital goods.

(2.) THEY had taken Modvat credit of Rs. 2,16,836/ - on capital goods, which was disallowed by the original authority as per order dated 10.12.98, whereafter the credit was expunged (when called upon to do so by the Range Superintendent) partly by debit in RG 23C Part II (Rs. 1,25,000/ -) and partly by debit in PLA (Rs. 91,836/ -), both on 17.4.2000 and under protest. Subsequently order -in -original dated 10.12.98 was taken in appeal to the Commissioner (Appeals), and the appeal was allowed with consequential relief as per order -in -appeal dated 29.4.03. The assessee filed a refund claim for Rs. 2,16,836/ - with the original authority on 24.6.04, which was sanctioned but the amount was ordered to be credited to the Consumer Welfare Fund in terms of Section 11B(2) of the Central Excise Act, 1944 as per Order -in -Original dated 23.9.04. This order was also taken in appeal and the Commissioner (Appeals) allowed the assessee's appeal. Hence the present appeal of the department.

(3.) IT appears from the impugned order that the Commissioner (Appeals) has treated the above amount as one covered under Clause (c) of the first proviso to Sub -section 2 of Section 11B of the Act and has accordingly taken the view that the bar of unjust enrichment is not applicable to the assessee's claim for refund of this amount. Vis -a -vis this view of the lower appellate authority, the appellants, have contended that, as the reversal of credit was shown by the assessee as "expenditure" which was automatically loaded on to the price of the final product, the amount of credit reversed by them was collected from their customers as part of the price of the goods. The appellants, in this connection, have relied on the Tribunal's decision in the case of Commissioner of Central Excise v. Christine Hoden (I) Pvt. Ltd. .