Order Date – 30 November 2023

Parties: M/s Total Oil India Private Limited, Total Energies Marketing India Pvt. Ltd. Vs Commissioner of Central Excise, Jaipur-II

Facts –

• The Appellant, M/s Total Oil India Private Limited, is engaged in the manufacture of Bitumen Emulsion and preparation of Polymer Modified Bitumen (PMB).
• A show cause notice was issued consequent to an investigation alleging that the appellant has availed excess Cenvat credit as per the provisions of Rule 6 of Cenvat Credit Rules, 2004. Accordingly, the demand for reversal was confirmed along with interest.
• Further in the case of appellant 2, a review order was issued, and it was contended that the review order was beyond the scope of the show cause notice as there is no allegation on the aspect of the principle of unjust enrichment. 

Issue –

• Whether the reversal of cenvat credit valid and proper?

Order –

• The Tribunal observed that the adjudicating authority has not given the benefit of the duty paid at the time of removal of PMB. Further there is no dispute that the appellant had paid the duty which has not been objected to by the Department during the relevant time. Therefore, the appellant cannot be denied the adjustment of this duty paid against the amount liable to be reversed. 
• Hence it was held that the Commissioner had erred in denying the adjustment against the demand for the period September 2012 to November 2012. It is not established that there was any intention of the appellant to evade duty or avail inadmissible credit. Therefore, no case has been made out by the adjudicating authority for levying penalty on the appellant, the same is set aside.
• It was observed that in several decisions, it has been held that the principal unjust enrichment does not apply to cases where duty has been paid to protest. The Tribunal relied on the decision in the case Commissioner of Central Excise Vs. Pricol Ltd. [2015 (39) STR 190(Mad)], the High Court of Madras held that “it has to be noticed that it has been the consistent view taken by the Courts that any amount, that is deposited during the pendency of adjudication proceedings or investigation is in the nature of deposit made under protest and, therefore, the principles of unjust enrichment does not apply.”
• Thus it was held that unjust enrichment does not apply to the refund claim in the impugned appeal. Hence the refund is allowed.