9911796707
TMI Blog2001 (2) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... question arose whether M/s. Hindustan Lever Limited could avail the benefit of Notification Nos. 24/65-C.E., dated 28-2-1965 and 259/83-C.E., dated 15-10-1983 simultaneously in respect of "Vegetable Product" falling under Item No. 13 of the erstwhile Central Excise Tariff. When the issue travelled upto the Tribunal, vide its order No. 38/89-C, dated 7-2-1989 it came to the finding that the appellants could avail of the benefit of both the said Notifications simultaneously and observed that "the correct interpretation of Notification No. 259/83 would be to calculate the deduction and give effect thereto with reference to the effective rate of duty. Such exemption would, however, be subject to the satisfaction of the conditions laid down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) has failed to appreciate that Assistant Commissioner had rejected the refund claims solely on the ground of "unjust enrichment" which was not raised at the time of personal hearing but only after the personal hearing had taken place and as such Commisioner (Appeals) failed to take cognizance of the fact that the adjudicating authority had committed a manifest error of law by introducing a ground which the appellants had no opportunity whatsoever of rebutting at the time of personal hearing and no Show Cause Notice in that behalf was issued to the appellants before such personal hearing. The learned Advocate argues that it is well settled that an order passed in violation of the principles of natural justice is a nullity and the null an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar of 'unjust enrichment.' He argues that the second Notification does not stipulate that the benefit of the exemption shall be extended to customers. According to him, the benefit of the rebate has been specifically and exclusively resumed for the manufacturer of such goods as it is in the nature of an incentive to encourage the manufacturer to use the specified oils in the manufacture of the concerned goods. He, therefore, pleads that the interpretation of the Assistant Commiossioner in this regard would defeat the very purpose of the second Notification and would render it nugatory, which is not permissible. In support of this plea, he relies upon the decisions/ judgements in the case of the Central India Spinning & Weaving & Manufacturi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund claims and crediting of the said amounts to the Consumer Welfare Fund would be wholly illegal and violative of the provisions of Article 265 of the Constitution of India. In this regard he relies upon the decisions/judgements in D.Cawasji & Co. v. State of Mysore - 1978 (2) E.L.T. (J 154) (S.C.); Madras Port Trust v. Himanshu International - 1979 (4) E.L.T. (J 396) (S.C.); Patel India (Pvt.) Ltd. v. Union of India - 1983 (13) E.L.T. 1495 (S.C.); Commisioner of Sales Tax, UP v. Auriaya Chamber of Commerce - 1986 (25) E.L.T. 867 (S.C.); Mafatlal Industries Ltd. v. Union of India - 1997 (89) E.L.T. 247 (S.C.); Autometers Limited v. Union of India - 1987 (29) E.L.T. 3 (Del.); Ashoka Industries v. UOI - 1988 (38) E.L.T. 3 (Cal.); BTX C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem which also they availed of by giving a detailed reply, more so, when the statute have clearly given retrospective effect." On perusal of the record, we observe that after conclusion of personal hearing on 3-8-1995, Assistant Commissioner vide his letter dated 15-9-1995 requested the appellants to submit documentary evidence to show that the duty incidence was not passed on to the customers/buyers to which the appellants sent as reply on 25-9-1995. They have also given reply on 27-9-1995 to a similar query from Superintendent (Tech.) of Barrackpore Division. On receipt of the said replies, Assistant Commisioner adjudicated the matter without giving an opportunity to the appellants to explain their case in person. We are of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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