COMMISSIONER OF C. EX., VISAKHAPATNAM Vs. SAGAR CEMENTS

JUDGEMENT

(1.) This is a revenue appeal against the OIA No 58/06 -CE dated 30th January 06 setting aside the OIO No. 14/04 dated 24 -3 -04 passed by the Assistant Commissioner of Central Excise ordering that the refund of Rs. 60,550/ - granted to the assessee was erroneous and is liable to be recovered from them in terms of Section 11A of the CE Act along with interest from the date of sanction of such refund. The brief facts of the case are as follows :

(2.) AT the instance of the selective audit it was pointed out that there was a difference between quantity shown in their weighment register with that shown in their invoices/R.G. 1 register. It was found that excess quantity of cement 189.890 MTs was cleared during the period 9/96 to 1/97 involving duty of Rs 60,550/ -. On being pointed out the same the appellants paid the duty under protest and the said duty was appropriated by the Additional Commissioner of Central Excise, Visakhapatnam vide Order -in -Original No. 24/2001 -HBP dated 24 -12 -2001. Aggrieved by the above order the appellants had preferred an appeal before the Commissioner (Appeals) and the appellate authority set aside the Order -in -Original vide Order -in -Appeal No. 93/2002 (V) CE dated 31 -10 -2002 by allowing the appeal with consequential benefits. In pursuance to the above said Order -in -Appeal, the refund was sanctioned to the appellants. Meanwhile the Department preferred an appeal before the Honble Tribunal against the said Order -in -Appeal as it suffered from legal infirmities. The refund sanctioning authority observed that the refund was erroneously refunded as the appellants have not produced any evidence to establish that they have not collected the amount of duty from their customers. Hence, a show cause notice was issued as to why the refund should not be recovered in terms of Section 11A of Central Excise Act, 1944 along with interest from the date sanction of such refund till die date of the refund is paid back to the Department. And the same was confirmed vide the impugned Order -in -Original.

(3.) THE Commissioner examined the assessees plea that they have not paid the amount against any demand and therefore there was no question of unjust enrichment and also that the question of proving the burden of duty did not arise. It was submitted by the appellants that the appellant had disputed the very assumption and when the entire amount was paid in one lump sum purportedly to be of short paid duty in respect of goods cleared and no part of the said duty was ever demanded or collected to the account of any customer, the question of passing on the burden of a part or whole of the duty to the customer did not arise. The Commissioner accepted the plea and gave the finding in para 5 and 6 as follows: