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TMI Blog2004 (2) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... duction of the Central Excise and Tariff Act, 1985, the metallised/lacquered plastic films made by the appellants were completely exempt from excise duty vide Notification No. 231/92-C.E., dated 27-10-1982. The above notification was withdrawn w.e.f. 1-3-1986. The metallised/lacquered plastic film was classifiable under Heading 39.20 under CETA 1985. Since there was some lack of clarity regarding dutiability of the goods, clearance of the same was stopped from 1-3-1986. 3. The appellant filed classification list under Rule 173B on 1-4-1986 claiming that no duty is payable on its goods for the reason that the process did not amount to manufacture and that the input and output were classifiable under same heading and no duty hence was payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n clearances made during the period May, 1986 to October, 1986 for the reason that metallising/lacquering amounted to manufacture. Commissioner (Appeals) confirmed the order on 20-4-1990. The appellant took up the matter before the Tribunal and by order dated 10-10-1996 the Tribunal took the view that the process would not amount to manufacture. On 18-3-1998 the appellant filed refund claim for the period from 8-5-1986 to 31-3-1988. 5. Show cause notice dated 13-8-1998 was issued proposing to deny the refund claim. By order dated 25-11-1998 the Assistant Commissioner rejected the claim on the ground of unjust enrichment. Commissioner (Appeals) by order dated 31-3-2003 confirmed the above order. 6. It is contended on behalf of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months will not apply even to a claim for refund by the purchaser, if duty was paid by a manufacturer on protest held that the purchaser has to satisfy the department regarding unjust enrichment before any refund can be made to him. We do not find the specific issue with which we are concerned was considered in the above judgment. The same is the case of another decision relied on by the learned DR, namely. Collector of Customs and Central Excise, Meerut v. Citurgia Biochemicals Ltd. - 1998 (101) E.L.T. 568 (S.C.). The order passed in Bombay Tyres International Ltd. is an order holding that the appellant has not produced any material to indicate that the burden of tax was not passed on to the consumers and therefore, they are not entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id under protest, the principle of unjust enrichment would not apply. 9. The subsequent decision of the Supreme Court in CCE v. Allied Photographics India Ltd. - 2004 (163) E.L.T. 401 (S.C.) has been brought to our notice. This judgment is rendered by a two Member Bench. In this case, the issue whether the claim for refund can be allowed without taking into consideration the doctrine of unjust enrichment after final assessment came up for direct consideration. Doubting the correctness of the decision of the three Member Bench in Sinkhai Syntehtics Chemicals Pvt. Ltd., in the matter of interpreting the ratio of the decision of Mafatlal Industries, the learned Judges referred the matter for consideration by a Larger Bench. In the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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