Page 201 - ELT_1st July 2020_Vol 373_Part 1

2020 ] J.K. PRINTS v. COMMISSIONER OF CGST, NAVI MUMBAI 111

legality of the reversal of refund order, of Rs. 10,17,419/- sanctioned by the Dep-
uty Commissioner of Central Excise at Kurla-Vikhroli Division Mumbai-II
Commissionerate, passed in the appeal preferred by the respondent-department
before the Commissioner of Central Tax, Central Excise & Service Tax (Appeals),
Raigarh.
2. Facts of the case cover a topsy-turvy path since 1998. For the period
from 16-2-1998 to September, 1999, Commissioner (Appeals) issued provisional
order to the appellant, engaged in manufacturing of processed textile fabrics
with the aid of Hot Air Stenter, to pay of Rs. 10,17,419/- and accordingly appel-
lant paid the same on protest but in the adjudication process initiated through
show cause notice dated 2-7-1999 and subsequent notice dated 26-10-1999, Assis-
tant Commissioner, Vikhroli Division, Mumbai-II dropped the proceedings on
the basis of judgment passed by the Hon’ble Supreme Court in the case of CCE v.
M/s. SPBL Ltd. reported in 2002 (146) E.L.T. 254 (S.C.) as such demand under Tex-
tile Processors Annual Capacity Determination Rules, 1998 was held to be unsus-
tainable in case of manufacturing done through Hot Air Stenter alone. Appellant
sought for refund of Rs. 10,17,419/- that was rejected by the Deputy Commis-
sioner, Central Excise, Kurla-Vikhroli Division, Mumbai-II Commissionerate, by
the Commissioner (Appeals) way back on 25-1-2005 in the appeal filed by appel-
lant, against which appellant moved to CESTAT and got an order of remand dat-
ed 25-8-2016 for redetermination of the refund claim by the original adjudicating
authority. In pursuance to the order of CESTAT, the Deputy Commissioner, Cen-
tral Excise, Kurla-Vikhroli Division, Mumbai-II Commissionerate sanctioned the
refund claim, against which respondent-department appealed before the Com-
missioner (Appeals) who set aside the refund order. Appellant filed this appeal
challenging legality of the said order.
3. In the memo of appeal and during course of hearing of the appeal,
Learned Consultant for the appellant Shri A.N. Sharma submitted that the find-
ing of the Commissioner (Appeals) rests solely on the ground that appellant
failed to pass the test of unjust enrichment but the same finding is erroneous for
the reason that he did not accept the Chartered Accountant certificate and the
finding of the refund sanctioning authority based on the report of Range Super-
intendent that no incidence of duty has been passed on to the buyers and put the
burden of production of such verification report of the Range Superintendent on
the appellant, which he never had the occasion to get in his possession. Further,
Learned Consultant for the appellant submitted that solely on the ground that
the said amount was shown in the book of accounts as expenditure and not re-
ceivable from Government would automatically get the burden shifted to the
customers is not supported by any cogent reason for which the order passed by
the Commissioner (Appeals) is required to be set aside.
4. In response to such submissions, Learned Authorised Representative
for the respondent-department Ms. Anuradha S. Parab, Assistant Commissioner,
in citing judicial decision in the case of Macleods Pharmaceuticals Ltd. v. Commis-
sioner of Central Excise and Service Tax reported in 2019-TIOL-2868-CESTAT-AHM
and others decisions like Hindustan Petroleum Corporation Ltd. v. Commissioner of
Central Excise, Mumbai-II reported in 2015 (317) E.L.T. 379 (Tri. - Mumbai), Saraf
Fab Trade Pvt. Ltd. v. Commissioner of Customs, Jaipur-I reported in 2018 (363)
E.L.T. 853 (Tri.-Del.) argued that the burden of establishing that incidence of du-
ty had not been passed on to the customer was on the appellant which it failed to
discharge, for which interference by the Tribunal in the order passed by the
Commissioner (Appeals) is uncalled for.
EXCISE LAW TIMES  1st July 2020  201