Crying fire is of no avail if one cannot show even a streak of smoke - Revenue appeal dismissed
PURSUANT to an order passed by the Commissioner (A) allowing their appeal, the respondent claimed refund of Rs.13,09,506/- and the same was sanctioned by the lower adjudicating authority. The Revenue challenged the same on the ground that the lower authority has not applied the doctrine of unjust enrichment. This appeal was rejected by the Commissioner (Appeals) and so the Revenue is trying its luck before the CESTAT. The appeal was filed in the year 2006 and it was heard recently.
The respondent skipped the proceedings.
It is the submission of the Revenue that the lower authorities while deciding the question of unjust enrichment have not taken into consideration the fact that in the books of account during 2001 the amount receivable was shown as Rs.1411.0 lakhs whereas during 2003 the amount receivable was Rs.496.0 lakhs. Inasmuch as the grievance of the department is that the respondent has not shown the breakup of Rs.496.0 lakhs and has also not shown that the said amount covered the amount of Rs.13,09,506/- which was to be refunded.
In the cross objection filed by the respondent it is submitted that the duty amount involved in this case was recovered by the department consequent to Dy. Commissioner's order dated 22/01/2002 by encashing bank guarantee of Rs.13,09,506/-; that consequent to the order of the Commissioner (Appeals) dated 23/03/2004 the en-cashed bank guarantee was required to be returned to the respondent and, therefore it will not be hit by doctrine of unjust enrichment.
The Bench observed -
"…Firstly I find that all these aspects have been taken into consideration by learned Commissioner (Appeals) in his order. Secondly, the amount of Rs.496.0 lakhs can undoubtedly cover an amount of Rs.13,09,506/- lakhs. If the department had any doubt in this regard nothing prevented them to investigate and establish that the amount of Rs.13,09,506/- is not covered in Rs.496.0 lakhs. The department did not carry out any such exercise. Further the learned A.R made an alternate plea to get the issue re-examined by the lower authorities. I do not think this will serve any purpose, since the department has not taken any step before or after filing the appeal to find out whether Rs.13,09,506/- lakhs was covered/not covered under Rs.496.0 lakhs. Crying fire is of no avail if one cannot show even a streak of smoke. In these circumstances, I do not find any reason to interfere with the concurrent findings of the lower authorities. Therefore, the learned Commissioner (Appeals) order is upheld. The appeal which is devoid of merits is dismissed."
Hopefully, the Department will not take their fire engine further…after all, it is after seven years that they have been reminded that there is no smoke without fire or for that matter that they are crying wolf!