- (1.) The Appellant herein is engaged in the manufacture of cylinders of 14.2 kg gas capacity falling under Chapter sub-heading 7311 of the Central Tariff Act and supplied the same to Hindustan Petroleum Corporation Limited and Indian Oil Corporation Limited for the period from July, 1999 to October, 2000. It filed an application dated 19-6-2001 for refund of excise duty to the tune of Rs. 26,23,366/- stating that the said LPG cylinders were supplied at price (provisional) revised retrospectively w.e.f. 1-7-1999 as per the purchase orders and further excess excise duty has not been charged from the customers. The Deputy Commissioner issued a show cause notice dated 23-7-2001 and the same was confirmed vide order-in-original dated 7-12-2001, rejecting the claim for refund of Rs. 19,92,385/- for the period from 1-7-1999 to 20-6-2000 on the ground of limitation and sanctioned the claim of Rs. 6,30,981/- for the period from 21-6-2000 to 31-10-2000. However, the sanctioned claim was ordered to be credited to the Consumer Welfare Fund on account of unjust enrichment. Aggrieved, the Appellant preferred the appeal before the Commissioner (Appeals), Jaipur, who partly allowed the appeal. He held that there was no evidence that buyers had passed on the incidence of duty to any other person (buyer) and, therefore, there was no unjust enrichment. On merits, however, he allowed the part refund to the extent of Rs. 6,30,981/- only holding that remaining claim was time-barred. Aggrieved, the Appellant preferred an appeal before the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT'), which has dismissed the same concurring with the view taken by the Commissioner (Appeals). It is clear from the aforesaid that otherwise the Appellant is held entitled to refund of the amount but ousted on limitation. Thus, the only issue which needs determination is as to whether the refund applications filed by the Appellant were within the period of limitation or not. In order to decide this issue, few dates which are material for this purpose may be taken note of which are as under:- The period for which refund is sought is July, 1999, to October, 2000. The notification revising the rate of excise duty was issued on 31-10-2000 and given retrospective effect that is, w.e.f., 1-7-1999. Thus, only on the issuance of this notification, the excise duty was reduced. It would, therefore, be clear that 31-10-2000 is the trigger point which entitled the Appellant to claim the refund. In the absence of any such notification there was no cause of action in favour of the Appellant to make any such application for refund. As a natural consequence, therefore, the period of limitation has to be reckoned from 31-10-2000. It is not in dispute that application for refund was filed on 19-6-2001 and the period of limitation at that time was one year. The applications for refund were, therefore, clearly within limitation. We do not understand the logic or rationale behind the order of the CESTAT counting the period from July, 1999 for which the excess amount was sought to be refunded. The order of the CESTAT is, therefore, palpably wrong and erroneous in law.
(2.) As noted above, adjudicating authority while rejecting the application of the Appellant for refund had also rejected it on account of unjust enrichment. In other words, it held that the Appellant had passed on the burden of excess excise duty to the buyers. However, this finding of the Deputy Commissioner was overturned by the Commissioner (Appeals), on the basis of evidence produced with categorical finding that the burden was not passed on inasmuch as the credit of the excess amount was given to the two public sector undertakings to whom the cylinders were supplied, namely, Hindustan Petroleum Corporation Limited and Indian Oil Corporation Limited.
(3.) It would, therefore, be clear that the Appellant is entitled to succeed in the claim of entire amount of Rs. 26,23,366/-. The aforesaid amount: shall carry interest of nine per cent per annum (to be calculated from the date when the refund became payable till the date when the amount is actually paid) shall be paid to the Appellant within a period of two months from the date of receipt of the copy of this order. The appeal stands allowed in the aforesaid terms.;