2012 (3) TMI 37 - HC - Central Excise

Maintainability of the reference application filed u/s 35H by Revenue - whether substantial question of law arises - Tribunal allowed refund claimed on duty paid under protest on input manufactured by the assessee and captively consumed in the manufacture of final product - Held that - In this case, final product is sold at market price which is same for all products manufactured and sold by every manufacturer. It is the duty of the assessee to prove that market price at which they sold the product does not include duty on input paid under protest. Therefore, substantial question of law arises that whether Tribunal was justified in holding that there is no unjust enrichment thereby entitling the assessee for refund of the duty paid under protest on input.Tribunal is directed to draw up a Statement of the case and refer the above question for decision by this Court.

Summary

Issues:
1. Maintainability of reference application under Section 35H for the valuation of goods.
2. Whether the Tribunal's order gives rise to substantial questions of law for the court.

Issue 1: Maintainability of reference application under Section 35H for the valuation of goods:
The Commissioner of Central Excise filed an application under Section 35H of the Central Excise Act seeking a direction to the Tribunal to refer questions of law arising from an appeal in favor of the respondent assessee. The respondent was engaged in manufacturing 'Acetylene Black' using 'Calcium Carbide' as an input, and the question was whether duty was payable on this intermediary. The respondent paid duty under protest from 1978 to 1983 but later succeeded in getting an exemption on the input. A refund application was filed, rejected by the assessing officer, but allowed by the Tribunal on a second appeal. The respondent contended that the reference application was not maintainable under Section 35H as the issue involved the valuation of goods. However, the court held that the specific bar under Section 35H pertains to the "value of goods for purposes of assessment," which was not the case here. The issue revolved around whether the duty paid under protest was loaded on the product price, not the valuation of the final product. Therefore, the court found no substance in the respondent's objection regarding the maintainability of the reference application.

Issue 2: Whether the Tribunal's order gives rise to substantial questions of law for the court:
The court considered whether the Tribunal's order raised substantial questions of law for its decision. The respondent's counsel argued that no question of law could arise from the Tribunal's factual findings. However, the Standing Counsel pointed out that certain issues decided by the Tribunal had been reversed by a Supreme Court judgment, emphasizing that payment of duty under protest alone does not entitle an assessee to a refund. The court noted that the burden was on the assessee to prove that the market price at which they sold the product did not include the duty paid under protest on the input. Given the conflicting positions and the need to examine the correctness of the Tribunal's decision, the court concluded that the appellate order did give rise to substantial questions of law. Consequently, the court redrafted the question to be referred to cover all relevant issues and directed the Tribunal to prepare a Statement of the case for decision by the court.

By thoroughly analyzing the issues of maintainability of the reference application and the substantial questions of law arising from the Tribunal's order, the court provided a detailed judgment addressing the legal complexities involved in the case.