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TMI Blog2002 (10) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... ly used by them in the manufacture of final product, acetylene black. They did not make any declaration of this input (calcium carbide), in their price lists No. 10/78 and 11/78, filed by them in May and April 78. The Revenue Department, however, informed them that their input was excisable and they were required to declare in the price list and classification list and were also liable to pay duty thereon. They, thereafter in subsequent price list 12/78 and classification list 3/78 declared calcium carbide also. Thereafter, notice was issued to them on those price lists and classification lists regarding classification and valuation. Till the pendency of the dispute they started paying duty under protest. They were thereafter issued show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding that the Apex Court judgment in the case of Union of India v. Solar Pesticides P. Ltd. - 2000 (116) E.L.T. 401 had not been considered wherein it has been observed that the doctrine of unjust enrichment applies to captively consumed goods also, and remanded the matter to the Commissioner (Appeals) for fresh decision. 4. After the remand, the learned Commissioner (Appeals) has taken the view through the impugned order, that the refund claim of the appellants, is hit by the doctrine of unjust enrichment. 5. Learned Counsel for the appellants had submitted that the doctrine of unjust enrichment did not apply to the case of the appellants on the grounds viz. (i) payment of duty was made under protest, (ii) the assessments made were pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in their price/classification lists filed in April and May 1978. It was only on the asking of the Department they declared the input calcium carbide in their subsequent price list 12/78 and classification list 3/78. 9. It is well settled law that when the duty had been paid under protest by an assessee the doctrine of unjust enrichment will not apply to his claim for the refund of the duty subsequently. In this view, we are fortified by the ratio of the law laid down by the Apex Court in Sinkhai Synthetics Chemicals P. Ltd. v. Commissioner of Central Excise - 2002 (143) E.L.T. 17 (S.C.). In that case, the Apex Court has ruled that refund of duty paid under protest would not be hit by the bar of unjust enrichment. The recoveries or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification lists, these were provisional in nature. Their refund claim has arisen subsequent to the passing of the order dated 23-12-98 by the Assistant Collector vide which the show cause notices issued on the price lists and classification lists by the Department to the appellants, were finally dropped and their assessments were finalised. 13. In Rajiv Mardia v. Commissioner of Central Excise - 2001 (129) E.L.T. 334, the Larger Bench of the Tribunal has held that clearances of the goods effected pending finalisation of the price and classification lists, would be provisional in nature. The procedure contemplated by Rule 9B of the Central Excise Rules, is not to be followed. 14. It is equally well settled that the doctrine of unjust en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the price of their final product, acetylene black had changed subsequent to the payment of duty on the inputs, calcium carbide, used by them for the manufacture of the product. Rather from the certificates issued by the Chartered Accountant, M/s. Suri and Company and M/s. Chandy and Zacheria placed on record by the appellants, show that the selling price of the final product was not influenced by the duty paid by them on calcium carbide. Their sale price of the final product remained almost the same and rather on some occasions it stood reduced even though consumption of calcium carbide had increased. The sale price was thus influenced only by the market and not on account of payment of duty on the inputs. The CA, M/s. Suri and Company, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner (Appeals) in the impugned order. We do not find any sufficient ground to discard the certificates and other evidence produced by the appellants for proving that the incidence of duty had not been passed on by them, to the consumers. 18. It is well settled that the incidence of duty cannot be said to have been passed on by the consumers, if the sale price of the goods had remained the same before and after payment of duty by the assessee. In this context, reference may be made to, Commissioner of Central Excise, Kanpur v. Corona Cosmetics Chemicals (P) Ltd. - 2000 (118) E.L.T. 356 (T) and Commissioner of Central Excise v. Minerva Mills - 2002 (141) E.L.T. 177, wherein it has been so ruled by the Tribunal. The Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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