CCE Vs. OSWAL CHEMICAL AND FERTILIZERS LTD.

JUDGEMENT

(1.) Revenue filed this appeal against Order -in -appeal No. 23 -CE/LKO/2008 dated 29.2.2008 passed by the Commissioner (Appeals), Lucknow, whereby adjudication order was set aside and the appeal filed by the respondent was allowed with consequential relief.

(2.) The relevant facts of the case, in brief, are that the respondents were engaged in the manufacture of Fertilizers i.e. Ammonia & Urea classifiable under Chapter 28 and 31 of Central Excise Tariff Act, 1985. On 12.1.1996 the respondents applied for registration under Rule 192 of the erstwhile Central Excise Rules, 1944 (in short "the said Rules") to the Assistant Commissioner of Central Excise, Sitapur and for permission to procure Naptha, for use in the manufacture of Fertilizers, on payment of concessional rate of duty under notification No. 76/84 -CE dated 1.3.84, as amended. By order dated 8th July, 1997 the Asst. Commissioner, Central Excise, Lucknow rejected the application for registration and to issue CT -2 certificate for procuring Raw Naptha on payment of concessional rate of duty. The respondents filed appeal before the Commissioner (Appeals). By Order -in -Appeal No. 304/CE/KNP/ALLD/98 dated 30.10.98 Commissioner (Appeals) held that the respondents are eligible to avail the benefit of exemption notification and to procure Raw Naptha on payment of concessional rate of duty under CT -2 certificate under Chapter X procedure of the said Rules. He allowed their application dated 12.1.1996. The respondents filed two refund claims on 6.3.99 for the amount of duty of Rs. 9,10,26,730/ - and 52,18,698/ -, which they paid under protest during the period July, 1996 to December, 1998 on Raw Naptha. The Original Authority rejected the refund claims on the ground that refund claims were barred by limitation and they failed to fulfill the condition of Unjust Enrichment and the goods were not accompanied with the proper duty paying documents. The Commissioner (Appeals) set aside the adjudication order. Hence, Revenue filed this appeal.

(3.) Learned Advocate on behalf of the respondents reiterates the findings of Commissioner (Appeals). He submits that the respondents filed refund claims before the different jurisdictional excise authorities where duty had been paid on Raw Naptha received from M/s. Bharat Petroleum Corporation Ltd. He, further, submits that on the identical issue the Tribunal in respondents' own case (supra) against Order of Commissioner (Appeals) Guwahati had allowed the refund claim. He, further, submits that in their own case on the identical issue the Ahmedabad Bench of the Tribunal vide order No. A/2510/WZB/Ahd./2007 dated 1.10.2007, against Order of Commissioner (Appeals) Rajkot held that refund is not time barred. The matter was remanded to the Commissioner (Appeals) to decide the issue of unjust enrichment on the basis of observation of the Tribunal. He also submits that in the remand proceedings the Commissioner (Appeals), Rajkot, by Order -in -Appeal No. 35/2008 dated 14.8.2008 allowed their appeal and set aside the adjudication order and as per his knowledge Revenue has not filed any appeal against the said order. In this context, the learned Advocate drew the attention of the Bench to the relevant portion of the said order as under: