9911796707
TMI Blog2003 (10) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty to the buyers. 2. The brief facts of the case are that the assessee filed two refund claims i.e. one for Rs. 3,40,344/- and the other for Rs. 7,056/- being the excise duty paid by them on Code 10-C consumed captively in the manufacture of PVC resins during the period from 11-10-92 to 7-3-92. They filed classification list claiming classification under sub-heading 2907 claiming exemption under Notification No. 217/86-C.E. right from 11-10-88. The classification list was approved with endorsement the assessee not entitled to avail Notification No. 217/86-C.E., dated 2-4-86 and the classification of the product was also revised to sub-heading 3911.90. Consequently they paid duty on the goods captively consumed for the period from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) has rejected the refund claim on ground of unjust enrichment thus going beyond the scope of the show cause notice and on this ground alone in the appeal the impugned order is liable to be rejected. Without prejudice to the above ground the assessee has taken a ground that unjust enrichment does not apply to goods captively consumed and in support of their plea they cited the judgment of the Hon ble Apex Court in the case of Bhadrachalam Paper Boards reported in 1999 (106) E.L.T. 290 (S.C.). 4. The Revenue has come in appeal against the same impugned order on the ground that in the instant case the assessee paid duty under protest on 30-11-89 and the protest was vacated by Assistant Commissioner by order, dated 8-5-91 and there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o captive consumption, the assessee has taken the following grounds that : (1) the lower appellate authority has exceeded the scope of the show cause notice and the order-in-original in regard to unjust enrichment. (2) The bar of unjust enrichment does not apply to cases of captive consumption. 6.2 Coming to the 1st point, I find that the show cause notice as well as the order-in-original has referred to Section 11B which deals with claim for refund of duty including limitation aspect as well as to the condition regarding its refund where the assessee has become eligible to the refund claim. In the instant case the Original authority has rejected the claim as being time barred. The question of considering proviso to sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificant. The words incidence of such duty mean the burden of duty. Section 27(1) of the Act talks of the incidence of duty being passed on and not the duty as such being passed on to another person. To put it differently the expression incidence of such duty in relation to its being passed on to another person would take it within its ambit not only the passing of the duty directly to another person but also cases where it is passed on indirectly. This would be a case where the duty paid on raw material is added to the price of the finished goods which are sold in which case the burden or the incidence of the duty on the raw material would stand passed on to the purchaser of the finished product. It would follow from the above that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n passed on to the purchaser of the finished product can be no ground for interpreting Section 27 differently. It is not possible that in no case will an importer not be able to prove that the incidence of the duty imposed on the imported raw material has not been passed on to any other person. In fact in Civil Appeal No. 4381 of 1999 filed by the Commissioner of Customs against M/s. Surya Roshni Limited, the importer had produced certificate from the Chartered Accountants giving details of costing of the final product and the Commissioner (Appeals) found as a fact that the component of excess customs duty paid on the imported raw material had not gone into the costing of the finished product. Without going into the correctness of this find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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