KELVINATOR OF INDIA Vs. CCE

JUDGEMENT

(1.) In this appeal filed by M/s. Kelvinator of India the issue involved is whether there was any delay on the part of the Department in sanctioning the refund of duty claim filed by them.

(2.) Shri P. Jain, learned Advocate, submitted that a demand of Rs. 17,13,514 -64 p. was confirmed against them by the Commissioner under Order -in -Original No. 10/89 dated 8.9.89 on the ground that they were selling their Scooters and Mopeds to M/s. Expo Machinery Ltd., a related person; that they had decided to deposit the said amount of duty and they had also deposited Rs. 11,47,609 for the subsequent period under protest; that the Appellate Tribunal vide Final Order No. 1382/90 dated 9.10.89 set aside the Commissioner's Order against which no appeal has been preferred by the Revenue; that the Appellants thereafter filed their claim for refund on 7.12.98 and 14.12.98 respectively; that the Asst. Commissioner under order dated 26.10.99 rejected their refund claim on the ground of unjust enrichment; that the Commissioner (Appeals) under Order -in -Appeal No. 138/2000 dated 6.11.2000 set aside the Order -in -Original and remanded the matter to the Adjudicating Authority with the direction to sanction the refund claim on production of appropriate certificate to the satisfaction of the Adjudicating Authority; that they had produced the necessary evidence to the Asst. Commissioner who under Order dated 10.7.01 allowed the refund claim without giving any finding on the interest claimed by them; that the Commissioner (Appeals) also rejected their appeal holding that interest is not a payable as there has been no delay in sanctioning the refund claim. The learned Advocate, further, mentioned that the duty had been deposited by them in 1989 -90 and as they had succeeded on merit the entire amount has become liable to be refunded to them; that at the time of making application for refund they had made it clear that there was no unjust enrichment which had ultimately accepted by the Department; that therefore, delay caused by the Department in coming to the conclusion that the interest is not payable is not justified; that all the documents as desired by the Asst. Commissioner was duly supplied in time; that therefore, there is no reason for justification to withhold the refund. He relied upon the decision in the case of Padmini Polymers Ltd. v. CCE, Ghaziabad, 2004 (92) ECC 389 (Tribunal) : 2004 (163) ELT 52 (Tribunal) wherein it has been held by the Tribunal that once the duty is ordered to be refunded, the time for payment of interest is computed from the date of receipt of application under Section 11B(1) of the Central Excise Act.

(3.) Countering the arguments Shri Kumar Santosh, learned SDR, submitted that as per provisions of Section 11B of the Central Excise Act any person claiming refund has to make an application which shall be accompanied by such documentary or other evidence as the applicants may furnish to establish that the amount of duty of Excise in relation to which refund is claimed was paid by him and the incidence of such duty had not been passed on by him to any other person; that since the Appellants had not submitted the proof/evidence to this effect, a show cause notice was issued to them on 25.8.99 asking them to submit the proof/evidence; that after considering their reply the Adjudicating Authority had rejected the claim on the ground of unjust enrichment; that the Commissioner (Appeals) had remanded the matter under Order -in -Appeal dated 6.11.2000 with the direction to sanction the refund claim on production of proper certificate indicating the price and duty involved at the time of clearances of scooter/moped by them to Expo Machinery Ltd. and the price and duty involved on the scooter, etc. at the time of sale from Expo Machinery Ltd. to its buyers to counter effectively the allegation of unjust enrichment; that in compliance of the said order the Appellants submitted certificates dated 1.2.2001 and 27.2.2001 issued by their Chartered Accountant; that as such the Appellants had complied with the direction of the Commissioner (Appeals) only on 27.2.2001 i.e. after 4 months of the Order -in -Appeal; that in absence of the certificate during the said period the Adjudicating Authority was not in a position to sanction the refund claim; that accordingly the period of 3 months for sanctioning of refund will start only after submission of the required certificate by them. The learned SDR also referred to the remand order dated 6.11.2000 of the Commissioner (Appeals) wherein it has been observed that "the fact remains that there is no direct evidence on record to prove or categorically state as to what was the price at which Expo Machinery Ltd. had actually sold the goods and what was the duty amount realized by Expo Machinery Ltd. on such sale vis -a -vis the price at which they had received the goods and duty amount paid thereon. Such a certificate I find is clearly missing." The learned SDR thus contended that since such certificate was missing refund claim could not be processed properly and it is the responsibility of the person claiming the refund to furnish the required material/evidence.