GOPI KRISHNA PROCESSORS PVT. LTD. Vs. CCE

JUDGEMENT

(1.) THESE appeal are directed against the order -in -appeal dated 30.07.2004, which upheld the order -in -original that credited the amount of refund claim of the appellant to the consumer welfare fund.

(2.) THE relevant fact that arise for consideration are that the appellants: During the period June, July and August, 99 were working under compounded levy scheme under Rule 96ZQ of the erstwhile Central Excise Rules, 1944. They were paying duty on the annual capacity determined by the Commissioner, Central Excise. The duty was paid on the basis of size of the chamber. A doubt arose whereby the duty was also demanded on the galleries which were a pollution control equipment. The size of the galleries were treated as liable to duty and they paid the duty for the said period amounting to Rs. 80,000 per month and the total amount for 3 months comes to Rs. 2,40,000.00. They submitted the refund claims to the department for the aforesaid 3 months as the Commissioner (Appeals). Customs and Central Excise, Chandigarh hold that the galleries were not liable to duty vide order -in -appeal No. 251 -258/CE/CHD -II/2001 dated 8.8.2001. Show cause notices dated 19.12.2001 were issued to the appellant for rejection of refund claims on the grounds that the order of the Commissioner (Appeals) had not been accepted by the Department and an appeal against the same had been filed in CEGAT (now CESTAT) and the matter is subjudice. However, the matter remained pending with the department. Finally the galleries were held to be not liable to duty by the Supreme Court in the case of CCE Jaipur v. Messrs Sangam Processors (Bhilwara) Limited . The matter was set at rest. Subsequently on 30.10.2003, the Assistant Commissioner, Central Excise, Amritsar issued addendum to the show cause notices on the grounds that the duty so paid on the length of galleries appeared to have been recovered from the Customers by passing on the incidence of excise duty and the refund claim suffered from the doctrine of unjust enrichment.

(3.) THE adjudicating authority sanctioned the refund claim but credited the same to the Consumer Welfare Fund. On an appeal the learned Commissioner (Appeals) concurred with the findings of the adjudicating authority and upheld the order -in -original.