9911796707
TMI Blog1998 (5) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... e Consumer Fund in view of unjust enrichment involved under Section 11D of Central Excise Act, 1944. The period involved is December, 1982 to December, 1984. 2. Another connected issue was the classification of Viscose and NC Synthetic Waste Blended Yarn. But this attained finality vide Order No. E/317/91, dated 24-6-1991 of the Tribunal classifying this yarn under old T.I. 18-III(1), particularly because the Revenue's appeal thereon was dismissed by the Hon'ble Supreme Court. [1996 (85) E.L.T. A125] 3. Heard ld. Advocate for appellants. He submitted that during the pendency of the aforesaid classification matter, the appellants had to face coercive recovery action by the department resulting in their being forced to pay Rs. 15, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved is the same viz. when duty is paid much subsequent to sale of the goods, then it cannot be presumed to have reached the consumer. He also stated that a Chartered Accountant's certificate also was on record to this effect. 6. We have considered the arguments on both sides. The short point for decision is whether their refund claim was not allowed correctly but instead credited to the Consumer Fund. For this consideration, we have necessarily to travel to the Order-in-Original also. There is no dispute therein on the issue of classification as it was settled finally vide the Tribunal's orders cited supra. There is no dispute also that consequential refund needs consideration. While doing so the applicability of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not received any excess payment after paying the differential duty from their buyers (which they oppose to substantiate with the payment particulars of each of the party from 1983 till date may be true, but they could not prove the fact that they did not realise any excess amount besides the price of the product as mentioned in the provisional invoice and the duty paid at the time of clearance (in addition to the duty actually paid at the time of clearance). Had they prominently indicated in all the documents relating to assessment, sales invoice and other documents the actual amount of the Excise Duty which will form part of price at which such goods were sold it would have been much easier for verifying their submissions or otherwise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yarn as Synthetic Yarn. This further creates scope for doubt because they were also manufacturing and clearing another yarn called "Polyster/Viscose Yarn" which is also another type of synthetic yarn. Further, the price of both yarns used to be the same. This had led the ld. Commissioner (Appeals) to conclude that "in other words even though the appellants were paying lower duty on the viscos/non-cellulosic yarn, which is the subject matter of the present appeal, they were charging the same price from the customers for this item as the price at which they were selling the Polyester/Viscose Yarn, for which they were paying higher duty. This would virtually amount to adjustment in the price of the viscose/non-cellulosic yarn so as to equate i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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