NANDA DEVI SHARMA AND ORS. Vs. CCE

JUDGEMENT

(1.) THE relevant facts of the case are that the appellants procured coal ash from M/s. Nepa Ltd., which they sold to their customers. M/s. Nepa Ltd. paid duty under protest. The appellant filed refund claim before the adjudicating authority based on the Hon'ble Gujarat High Court judgment dt.4.4.2000. The adjudicating authority allowed the refund claim as the issue of unjust enrichment was settled in favour of the assessee by the Commissioner(Appeals) in identical case of one of the appellant Manoj Kumar Agarwal vide order -in -appeal No. IND -I/121/2004 dt.17.3.04 which was upheld by the Tribunal vide Final Order No. 1797/05 -SM dt.24.8.05. The revenue filed an appeal before the Commissioner(Appeals). Commissioner(Appeals) set aside the adjudication order on the ground that the appellant failed to establish that the incidence of duty had not passed on to any other person. Hence, the appellant filed these appeals before the Tribunal.

(2.) LD . Advocate submits that the Commissioner(Appeals) while passing the order, had totally ignored the final order dt.24.8.05 of the Tribunal. He further submits that the Commissioner(Appeals) proceeded on the basis that the appellant earned higher profit margin in this case. He also submits that the Tribunal discussed in the Final Order dt.24.8.05 on this issue and rejected the appeal filed by the revenue.

(3.) ON perusal of the impugned order, it is seen that the Commissioner(Appeals) rejected the refund claim on the ground that the profit margin of the appellants are on the higher side. The Tribunal in the case of CCE, Indore v. Shri Manoj Kumar Agrawal vide order dt. 24.8.05 observed that the entire amount collected from the buyers over and above the purchase price(without tax) has been taken as gross profit for income tax purpose. So, the refund claim cannot be rejected simply on the ground that the appellant earned higher profit margin which has already been taken care by the Income Tax authorities.