Page 117 - ELT_1st August 2020_Vol 373_Part 3

2020 ]COMMR. OF GOODS AND SERVICES TAX, ROHTAK v. GAWAR CONSTRUCTION LTD.299

spite being eligible for exemption under Notification No. 108/95-C.E. - Finding
of Tribunal that refund cannot be denied merely because notification termed
as exemption notification, proper - Section 11B of Central Excise Act, 1944. [pa-
ra 7]
Refund - Unjust enrichment - Certificate by Chartered Accountant
produced by assessee - Assistant Commissioner’s finding that since Excise Du-
ty was 12.36%, assessee must have passed on burden to purchaser, purely pre-
sumptive finding - Tribunal’s decision to allow refund affirmed - Section 11B
of Central Excise Act, 1944. [paras 7, 8, 9, 10, 11]
Appeal dismissed
REPRESENTED BY : Shri Sunish Bindlish, Advocate, for the Appellant.
[Order per : Ajay Tewari, J. (Oral)]. - At the very outset, it was pointed
out to the Learned Counsel for the appellant that one of the members of this
Bench (Avneesh Jhingan, J.) had represented the appellant in some un-related
sales tax matters and therefore, this Bench would have no hesitation in recusing
from hearing this case, however, Mr. Sunish Bindlish, Adovcate says that he
would have no objection if we hear the matter.
2. This appeal has been filed against the order of the Tribunal allowing
the appeal of the respondent and thereby setting aside order dated 30-8-2018
[2019 (370) E.L.T. 780 (Tri.-Chan.)] of the Revenue rejecting the application for
refund of duty which was wrongly paid.
3. The questions of law claimed are as under :-
“(i) Whether CESTAT’s Final Order No. A/63176/2018-EX(DB), dated
30-8-2018 is fair, legally correct and proper in the light of admission
of Refund Claim of Central Excise Duty paid on the goods which
are exempted from Central Excise Duty on fulfilling certain condi-
tions which these conditions have not been fulfilled by the claim-
ant?
(ii) Whether in the facts and circumstances of the case the exemption
could be available post when there is no provision and procedure in
the exemption notification?
(iii) Whether the Refund claim is under the proper jurisdiction and also
barred by the time-limit?
(iv) Whether the facts and circumstances of the case, the absence of evi-
dence, the claimant has been able to pass the test of unjust enrich-
ment as mandated by the Hon’ble SC in case M/s. Mafatlal Industries
(Supra)?
(v) Whether the impugned order passed by the Ld. Tribunal is justified
and in accordance with law?”
4. Brief facts of the case are that the respondent was executing a project
which otherwise fell within the exemption Notification Bearing No. 108/95, dat-
ed 28-8-1995 which gives exemption from excise duty to the goods supplied to
UN or an International Organization subject to certain conditions.
5. Admittedly, the respondent had purchased Bitumen from different
manufacturers and since those manufacturers did not know the purpose for
which Bitumen was to be used, they charged excise duty which the assessee paid
and subsequently moved an application for refund.
6. The Assistant Commissioner rejected the claim. The primary reason
EXCISE LAW TIMES  1st August 2020  117