COMMISSIONER OF C. EX. Vs. CARBORUNDUM UNIVERSAL LTD.

JUDGEMENT

(1.) THE respondents had availed proforma credit under Rule 56A of the Central Excise Rules, 1944 and Modvat credit under Rule 57A of the said Rules in respect of different final products during Mar. '86 to Feb. '87. The Department objected to this simultaneous availment of the two types of credit and accordingly issued a show cause notice proposing to disallow the credit availed under Rule 56A. The original authority, the first appellate authority and this Tribunal upheld the stand taken by the Department. In the result, the demand for reversal of credit under Rule 56A for the normal period of six months stood affirmed. The Tribunal's Order No. 900/89 dated 6 -11 -1989 was taken by the assessee to the High Court through a reference application. The Hon'ble High Court answered the issue in their favour, holding that it was open to them to simultaneously avail Rule 56A and Rule 57A credits in respect of different final products. On the strength of the High Court's decision, the assessee filed an application for refund of Rs. 9,12,315/ - (Rs. 6,12,315/ - being the amount of Rule 56A credit reversed + Rs. 3,00,000/ - being the amount of pre -deposit made by the assessee for the purpose of their appeal before the Tribunal). The original authority allowed refund of only the pre -deposit amount. It rejected the rest of the claim on the ground of unjust enrichment. This decision of the original authority was upheld by the Commissioner (Appeals). Aggrieved by the appellate order, the assessee preferred an appeal to this Tribunal. The Tribunal passed Final Order No. 522/2003 dated 19 -6 -2003, the operative part of which is reproduced below : -

(2.) PURSUANT to the above remand order, the original authority passed an order holding that the refund claim in question related to input duty credit under Rule 56A and hence the bar of unjust enrichment was not applicable to it. This view was affirmed by the first appellat authority also. Hence the present appeal of the Revenue.

(3.) AFTER examining the records and hearing both sides, I find that the only objection raised in the present appeal by the Revenue is to the effect that the claim for refund of Rs. 6,12,315/ - filed by the assessee was not to be considered as one relating to input duty credit under Rule 56A and must be treated as one relating to duty of excise simplicitor paid in cash under TR 6 Challan. The appellant concedes that, if the claim is rightly relatable to input duty credit, it can be allowed, unaffected by the bar of unjust enrichment. If it is not so relatable, the bar of unjust enrichment will be applicable. This proposition is not in dispute. What is in dispute in this appeal is whether the refund claim could be treated as one relating to input duty credit? The appellant has submitted that Id. Commissioner (Appeals) has not given an independent finding on this question.