Page 145 - ELT_1_1st April 2020_Vol 372_Part

2020 ] HONDA SIEL POWER PRODUCTS v. UNION OF INDIA 31

REPRESENTED BY : S/Shri Nishant Mishra, Tarun Gulati and Vinayak
Mathur, Counsels for the Petitioner.
S/Shri Anant Kumar Tiwari and B.K. Singh
Raghuvanshi, Counsels for the Respondent.
[Order per : Rohit Ranjan Agarwal, J.]. - Heard Sri Tarun Gulati,
Learned Senior Counsel assisted by Sri Vipin Upadhyay and Sri Nishant Mishra,
Learned Counsel for the petitioner, Sri B.K.S. Raghuvanshi and Sri Anant Kumar
Tiwari, Learned Counsel for the respondents-department.
2. Present petition has been filed seeking a writ of certiorari for quash-
ing show cause notice dated 17-8-2017 and order dated 30-11-2017, and also for
writ of mandamus restraining respondents from enforcing demands in respect of
repayment of refund received by petitioner.
3. Facts in brief are that petitioner is a Company incorporated under
the Companies Act, 1956 and is engaged in manufacture of portable gensets and
IC engine falling under Chapter Heading No. 85 and 84 of First Schedule to Cen-
tral Excise Tariff Act, 1985.
4. Dispute relates to period 2014-15. According to petitioner, it applied
for provisional assessment of excise duty under Rule 7 of Central Excise Rules,
2002 (hereinafter called as “Rules”) on 1-4-2014. The Excise Commissioner, Cen-
tral Excise, Division-II accepted the request of petitioner for provisional assess-
ment and intimated the same on 31-7-2014. The said correspondence is on record
as Annexure-5. Petitioner-Company, thereafter, filed an application for finalisa-
tion of provisional assessment on 19-6-2015.
5. Provisional assessment was finalised for period 2014-15 by Assistant
Commissioner on 24-7-2015, copy of said order is on record as Annexure-8. Ac-
cording to provisional assessment order, an amount of Rs. 17,89,42,303/- was
passed on to customer and excise duty deposited to the tune of Rs. 1,02,75,633/-
was in excess. Assistant Commissioner further held after examining certificate
submitted by CA of petitioner-Company that principle of unjust enrichment was
not applicable to facts of the case. Order of provisional assessment became final
as the department did not prefer any appeal as contemplated under Section 35E
read with Section 35 of Central Excise Act, 1944 (for short “Excise Act”).
6. After finalisation of provisional assessment, petitioner-Company ap-
plied for refund. Again after adjudication of refund, on 5-11-2015 refund claim
was sanctioned under Section 11B of Excise Act. The adjudication of refund order
also took note of the fact that unjust enrichment did not apply to facts of the case.
This order was also appealable under Section 35E read with Section 35 of Excise
Act, but no appeal was preferred by department and it attained finality.
7. In one of the matters CCE, Madras v. Addison and Company, (2016) 10
SCC 56 = 2016 (339) E.L.T. 177 (S.C.), the Apex Court held that principle of unjust
enrichment applied in a case where manufacturer had failed to establish that
burden of duties had not been passed on to the ultimate buyer. On the basis of
said judgment, respondent No. 2 issued show cause notice to petitioner-
Company on 17-8-2017, that is after more than two years, asking why amount of
Rs. 1,02,75,633/- which was erroneously refunded, should not be recovered and
credited to the Consumer Welfare Fund. Reply was filed by petitioner-Company
on 9-10-2017 and written submission were submitted on 30-10-2017, taking spe-
cific objection that proceedings seeking to reopen concluded proceedings on the

EXCISE LAW TIMES  1st April 2020  193