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TMI Blog2004 (3) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... p a lot of contentious issues. In CCE v. Fort William Company Ltd., 1989 (43) E.L.T. 339 (T), the Tribunal has held the following :- In so far as the first issue is concerned, we find that the learned Counsel has drawn our attention to the Tribunal s order in the case of Sarabhai Chemicals, in which it has been observed inter alia that Rule 173L is a complete code regarding refund of duty on goods returned to factory. We agree with this proposition in so far as Rule 173L provides the conditions, which are required to be satisfied for claiming refund under said Rule. This Rule, however does not refer to any time limit for claiming refund and its provisions are technical in nature. Therefore, while a refund claim filed, reference to this rule is required to be technically scrutinized in terms of the conditions of this Rule. However, in so far as the question of time-limit is concerned, it is required to be seen whether Section 11B applied. In so far as the second question is concerned, we find that Section 11B(b) specifically refers to the case of goods returned to the factory (i.e. the subject matter of Rule 173L). Therefore, we consider that Section 11B and Rule 173L have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been passed on to any other person. The passing on will occur only if the person who claims the refund of duty has shifted the burden to another. There can be no passing on of the incidence of the duty if he merely reduces the burden by receiving the refund. The Tribunal in CCE v. Oswal Cotton Spinning Mills has also held that issue of debit notes can be taken into account, as evidence for determining whether duty was passed on or not. Further, in Dharamsi Moraraji Chemical Co. Ltd. v CCE - 2002 (104) ECR 71 (T), it was held that based on the decision of the Madras High Court in Addison Company and the Tribunal in CCE v Oswal Cotton Spinning referred above, the credit notes issued by manufacturers should be taken into account, and the refunds granted. In CCE v. Surya Roshini Ltd. - 2002 (122) E.L.T. 3 (S.C.), the Supreme Court has held in Para 5 : In the case of transportation what is includible is the cost of taking out insurance to cover the goods transported; in other words, to cover oneself against a possible loss by paying a premium to an insurance company. The payment made by the respondent to its customers for breakages and losses cannot tantamount to insurance. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944 . In the case of M/s. Essel Packaging Ltd. v. CCE, 1990 (50) E.L.T. 430, it has been held that : The Assistant Commissioner does not have the power of readjudication and that he cannot readjudicate the matter which has already been adjudicated by his predecessor . The Hon ble Supreme Court in the case of Union of India v. K.M. Shankarappa reported in 2001 (127) E.L.T. 8 (SC) has held as follows : the decision passed by the judicial body would be final and binding so far as the executive is concerned and to permit the executive to review and/or revise that decision would amount to interference with the exercise of judicial function . In CCE v. M/s. Adarsh Rerolling Mills - 2002 (143) E.L.T. 533, the Larger Bench of the Tribunal has held : the Adjudication Order having been passed contrary to the decision of the appellate Authority could not be allowed to withstand . It is therefore seen from the above decision that once a show cause notice has been issued, and adjudicated upon, the Department cannot subsequently issue another show cause notice, and adjudicate upon the same facts of the case, even if different provisions are involved. It is seen herein, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector (Appeals) determination of such points arising out of the decision under Section 35E(2) of the Central Excise Act. The Supreme Court in CCE v. Polymer and Allied Chemical -1993 (65) E.L.T. A151, and in CCE v. Western India Wire Industries - 1990 (48) E.L.T. A63 have also upheld the orders of the tribunal wherein it was held that the Assistant Collectors cannot review his own order granting refund, and the proper course was a revision by Commissioner. In view of the above decisions of the Supreme Court, it is seen that the Assistant Commissioner was in error, in issuing another show cause notice after passing an order earlier with respect to the same, as it would amount to reviewing his own order. The Tribunal in Re-rolling Mills v. CCE - 1989 (43) E.L.T. 1115 (T) has held that a demand for erroneous refund is to be made within six months from the date of grant of refund. The relevant para reads as follows - When any excise duty has been erroneously refunded, Section 11A requires that the Central Excise officer should within six months from the relevant date, serve a notice on the person to whom the refund was erroneously made requiring him to show cause, why he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such burden not discharged by department - Section 11B ibid . Hence, the inference of the lower adjudicator is at best a speculation and such an order cannot be sustained. I am of the considered opinion that the appellants are entitled to receive the refund. Appeal allowed. 2. Revenue contends in this appeal that the provisions of unjust enrichment is also attracted under Rule 173L. It is stated that the Tribunal while allowing the assessee s appeal had also observed that while granting refund, the question of unjust enrichment may be gone into. It is stated that the Commissioner has not looked into this portion of the Tribunal s order. It is stated that the finding arrived at by the Commissioner (Appeals) that the Dy. Commissioner cannot review his own order granting refund is not as per law. The order passed by the Dy. Commissioner sanctioning the refund claim and then directing the same to be credited to the Consumer Welfare Fund under Section 12C of the Central Excise Act is correct and proper. It has also been stated that the burden of showing that unjust enrichment has not been attracted is on the assessee and the same has not been discharged. The Commissioner s findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 11B(2) is not applicable in respect of goods which were returned for reprocessing under Rule 173H and 173L. 6. On a careful consideration of the submissions, and on perusal of the entire order of the Commissioner, we are in agreement with the Commissioner (Appeals) order as the same is just, legal and proper. In the present case, there was no sale by the assessee to their customers. The goods were rejected which were returned to them. They had issued credit notes which were issued not after the goods had already left the place to the consumers in the market. The debit notes and credit notes were issued only to facilitate return of goods for accounting purpose. The Commissioner s finding that there was no unjust enrichment has not been seriously challenged. The grounds taken are academic. In the present case, the ratio of the Apex Court s judgment rendered in the Mafatlal Industries case at Para 97 is applicable wherein it has been clearly held that when there was no sale, then the provisions of Section 11B is not attracted. We, further, notice from the judgments of CCE v. Fort William Co. Ltd., and that of Kisan Sahkari Chini Mills Ltd. v. CCE, Kanpur (supra) that p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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