9911796707
TMI Blog2002 (2) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... apes made between April 1986 and March 1992. The assessee had sought classification of these goods under Heading 39.20 of the tariff as tapes of plastic. The department was of the view that tapes were correctly classifiable under Heading 54.06 of the tariff as woven fabrics. The rate of duty on goods classifiable under tariff Heading 54.06 at the relevant time was higher than the duty payable on goods classifiable under Heading 39. The assessee paid the duty at higher rate after recording its protest. 2. The assessee also appealed the classification that the department has decided. The Commissioner (Appeals), whose order was confirmed by the Tribunal, on appeal, held the goods to be rightly classifiable under Heading 39.20. The assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us. This is that, as a result of the classification of the goods by the Department under Chapter 54, the benefit of Modvat credit which was available to goods of Chapter 39 has been wrongfully withheld. Modvat scheme was extended to textile and textile articles only in 1996. Therefore, by the department s wrong classification, the assessee has been denied the Modvat facility, which it would otherwise have been entitled to. If the Modvat credit was available, it would have paid the duty by utilisation of such Modvat credit. Only because it was not available, the duty was paid from the funds in the personal ledger account. Therefore, what is sought to be refunded is the refund of Modvat credit not allowed. Since clause (c) under sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt purchaser who uses it as an input for manufacture of other goods. That amount is to be utilised towards payment on goods that he manufactures. The moment this is done it becomes the duty of excise and is no longer identifiable as credit of duty paid on excisable goods available at the point of that manufacture. The credit of duty referred in clause (c) of the second proviso under sub-section (2) of Section 11B of the Act therefore cannot be the duty that has been paid out of the Modvat account by the manufacturer. The provisions of unjust enrichment would equally apply to duty, whether paid out of Modvat credit or the personal ledger account at the disposal of the manufacturer. 7. The decision of the Tribunal in CCE v. Kanpur Plastipac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able but concludes that as a result of set off Rs. 2.27 lakhs is recoverable from the assessee. His consideration of this Modvat claim therefore obviously did not relate to the duty which was claimed as refund. 10. The Counsel for the respondent next cited the judgment of the learned single judge of the Bombay High Court in Deccan Sales Corporation and Another v. R. Parthasarathy and Others 1982 (10) E.L.T. 885. The ratio of this judgment is that where, as a result of the department s actions, the assessee was wrongly deprived of the benefit of the proforma credit because of delay, the credit that was otherwise available did not deny to the appellant. We do not see how this ratio applies to the facts before us. The question before the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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