9911796707
TMI Blog1999 (10) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... der : 3. The respondents classified their steel products as bars under TH 7214.90 but this classification was disputed by the revenue by alleging that the product was flats/hoops falling under TH 7211.90 and 7211.30 whereby the duty leviable was at the rate of Rs. 700 PMT, instead of Rs. 500/- PMT. This dispute, after passing through the hands of the lower authorities, reached up to the CEGAT who vide final order Nos. E/216 to 379/90-B, dated 20-12-1990 held the products to be bars chargeable to duty at the rate of Rs. 500/- PMT and not at the rate of Rs. 700/- PMT. However, the revenue did not feel satisfied with this order of CEGAT and approached the Apex Court by filing the appeal against that order, but their appeal was dismissed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle of unjust enrichment. The respondents, however, contested both the pleas of the department and maintained that the provisions of Section 11B are not attracted for having not paid the excess duty amount voluntarily but under protest and that the principle of unjust enrichment is also not attracted for having not passed on the incidence of burden of the duty to the consumer. 4. The Assistant Commissioner, however, did not agree with the contention of the respondents and dismissed their application by holding that it is not only time barred under Section 11-B of the Central Excise Act, but is also hit by the principle of unjust enrichment for having failed to prove that the incidence of duty had not been passed on to another person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e payment of duty was made under protest in compliance with the order of the Honourable High Court dated 8-11-1989 and that Section 12-B regarding presumption of having passed on the incidence of duty to another person, was inserted in the Statute only in September, 1991 much after the deposit of the duty amount by the respondents. Therefore, the impugned order of the Commissioner is perfectly valid. 10. I have given my careful thought to the respective contentions and counter contentions of the SDR and the Counsel for the respondents. In my view, the contention raised by the learned SDR deserves to be accepted. The facts are not much in dispute. The duty amount in question, in respect of which the refund claim had been made, by the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been passed on to the consumer. But on the basis of this assumption, he could not by-pass the principle of unjust enrichment. No doubt, the provisions of Section 12-B under which presumption has to be drawn regarding the passing of incidence of duty to another person by the manufacturer/assessee, had been inserted in the Act only with effect from 20-9-1991, but even before that such a presumption did exist in terms of the proviso to Section 11-B of the Act. In this context, even reference may be made to Mafatlal Industries Ltd., 1997 (89) E.L.T. 247 (SC), wherein it has been even so ruled by the Apex Court. 12. Learned Counsel for the respondents has, no doubt, contended that the respondents did produce gate passes/invoices wherein they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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