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TMI Blog1990 (5) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble High Court to the effect that if the petitioners have passed on the excise duty to the consumers they would become ineligible to claim refund, since the refund could be claimed by the consumers. After investigation, the learned Assistant Collector ascertained that the price charged by the appellants on 14-3-1985 for a particular packing was Rs. 285; Rs. 205 and Rs. 208, while on 9-4-1985 they charged for the same variety Rs. 425; Rs. 295 and Rs. 290 and continued the same rates till 4-5-1985. The price, it has been observed by the learned adjudicating authority, had been increased during the period consequent on their payment of duty to a considerable extent. The appellants contended before the learned Assistant Collector that the price increase was not due to the passing on the duty burden but due to other circumstances such as shortage of supari, steep increase in the prices of raw materials etc. The learned Assistant Collector, however, held that the appellants had not substantiated their contention in regard to the factors leading to price rise and concluded that the appellants had passed on the duty burden to the consumers and rejected the appellants refund claim. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a consideration has a place in dealing with a claim for refund of duty under Section 11B of the Central Excises and Salt Act, 1944. In this view of the matter, the Collector (Appeals) was clearly wrong in allowing himself to be influenced by the decisions cited before him which were all relating to decisions in exercise of writ jurisdiction by the High Courts/Supreme Court." . He also drew our attention to the judgment of the Tribunal in the case of C.C.E., Rajkot v. Decora Ceramic Private Limited, Rajkot, reported in 1986 (24) E.L.T. 73 (Tribunal), in para 10, which for convenience of reference is reproduced below: We have carefully considered the submission before us. At the outset, we would like to say that unlike Courts of law (the High Courts and the Supreme Court) which, in their extraordinary jurisdiction, may decline to grant relief on the ground that it would amount to unjust enrichment of the claimant, this Tribunal, acting within the statute, has no power to deny relief on this ground, if relief is due on the merits of the dispute before it. Central Excise Law does not authorise denial of relief on the score of unjust enrichment nor does it make refund of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated upon by me. Therefore, I hereby direct the Assistant Collector in each of the cases to examine this question whether the petitioners in each of the cases have passed on the excise duty to the customers or not. If he comes to the conclusion that the same has not been passed on to the customers, necessary orders of refund shall be made. Otherwise a reasoned order for coming to the conclusion that they have passed on the excise duty shall be passed, the correctness of which could be agitated by the petitioners in the manner known to law." 15. In the result (1) I hold the product manufactured by the petitioners viz., scented betel-nut powder cannot be classified as Pan Masala under Tariff Item 3A to Schedule I of the Central Excises and Salt Act, 1944, and (2) the impugned demand and show cause notice shall stand quashed. (3) The petitioners shall be entitled to refund subject to the decision of the Assistant Collector as stated above. The Assistant Collector in each of the cases is hereby directed to decide the question whether the petitioners in each of the cases have passed on the excise duty to the customers. It will be open to the petitioners to rely on any document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants had absolved the duty burden themselves or had passed on the same to the consumers. This is clear from the observations of the Hon ble High Court in their order as under : Therefore if the petitioners had passed on the excise duty to the consumers, certainly, they become ineligible to claim the refund since refund could be claimed only by the customers as laid down in the above rulings. This is a controversial fact. The Hon ble High Court, therefore, has clearly laid down as to who could make the claim for refund in the facts and circumstances of this case. For the appellants to become eligible for the claim of refund they have, therefore, to establish first that they had not passed on the duty burden to the consumers. They made the claim in pursuance of the judgment of the Hon ble High Court before the original authority and made the plea that in fact they had not passed on the burden to the consumers. They, however, failed to furnish any details and data in this regard to the said authority. The said authority, therefore, went by the prices charged by the appellants before the levy and after the levy was lifted from the goods and also during the period when the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfine myself to the legal question which I propose to discuss hereunder. 7. The appellants have claimed refund of Central Excise duty paid on betel-nut powder for the period 6-4-1985 to 7-5-1985 on the ground that the Central Government have exempted Pan Masala which does not contain lime or catechu or both from the whole of excise duty and, therefore, in terms of Central Excise Notification 113/85 dated 8-5-1985 the duty paid by the appellants would be refundable. The appellants filed a writ petition in the High Court of Madras questioning the leviability of excise duty on the product in question and also for relief of refund in respect of the duty paid by the appellants. The High Court, while finding that the scented betelnut powder could not be classified as Pan masala under Tariff Item 3A to Schedule I of the Central Excises and Salt Act, 1944, in respect of the refund claim has observed as under : ... if the petitioner had passed on the excise duty to the consumers, certainly, they become ineligible to claim the refund since refund could be claimed only by the customers as laid down in the above rulings. This is a controversial fact, which cannot be adjudicated upon by m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on record as to whether the incidence of duty has been passed on to the customers or not before considering the grant of refund in terms of the order of the High Court. We are not called upon to go into the question on the facts with reference to the passing of the incidence of tax on the consumers, because that factual position was not controverted before us. As I have stated earlier, the only question is even if the incidence of duty had been passed on to the consumers whether the contention of the appellants that the appellants would be entitled to the relief of refund notwithstanding the judgment of the High Court contra is tenable in law. The appellants having invited the jurisdiction of the High Court and having been a party in the writ proceedings is bound by the order of High Court and the order of the High Court admittedly having reached a stage of finality cannot be circumvented or set at naught by the appellants by purporting to exercise a right of relief in respect of the same cause of action once over contrary to the tenor of the High Court s order. Orders that have reached a stage of finality cannot be permitted to be reopened at a later date and this is one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer was challenged in appeal before the Appellate Assistant Commissioner with no effect and a further appeal to the Tribunal having failed the matter came up for consideration before the Division Bench of the Andhra Pradesh High Court. The plea advanced before the Division Bench was that when the appellate authority had passed an order in favour of the assessee and then remanded the matter to carry out his directions the order of the appellate authority having become final was not open to the assessing authority to by pass the same and apply the ratio of the Supreme Court ruling and pass an order nullifying the order of the appellate authority. In other words an order which has become final cannot be set at naught notwithstanding the fact that the view taken was not in consonance with the later ruling of the Supreme Court on an identical issue in a different case. The Division Bench according approval to the plea in regard to the finality of orders observed as under : Under his order dated 23rd March, 1974, the Appellate Assistant Commissioner had recorded a definite and clear finding that the transactions in question are sales in the course of export and therefore exempt fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had become final. That was a case where the appeal of the petitioner before CEGAT, New Delhi, was dismissed under Section 129E of the Customs Act, 1962 on the ground that he had not made the pre-deposit as directed by the Tribunal. In respect of certain other persons aggrieved by the same order the Tribunal set aside the impugned order and remanded the matter to the Collector. The contention raised before the Gujarat High Court was that inasmuch as the impugned order had been set aside by the appellate authority in the appeal preferred by some other persons aggrieved and the matter was remanded the petitioner also should be afforded a similar relief by the writ court. The Division Bench of the Gujarat High Court repelled the contention and held that so far as the petitioner before it was concerned the order had become final and cannot be interfered with. The Division Bench observed in this context as under : The learned counsel for the petitioner contends that certain other persons aggrieved by the order passed by the Collector had preferred appeal. In appeal, the appellate authority has remanded the matter to the Collector by observing that principles of natural justice were n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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