9911796707
TMI Blog2005 (3) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... Acid (SS Acid, for short) (78% to 80% concentration) emerged at the end of the process of manufacture and the same was cleared without payment of duty. Show-cause notices were issued to the assessee demanding reversal of Modvat credit on account of SS Acid, alleged to be a marketable and excisable product, having been cleared without payment of duty. This demand was resisted by the assessee who contended that SS Acid being a waste was covered by the provisions of Rule 57D which did not require reversal of Modvat credit or payment of equivalent amount of duty. The original authority confirmed the demand against the assessee. But the first appellate authority set aside the demand, holding that SS Acid was a by-product attracting Rule 57D and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee paid 8% of the price of SS Acid which was cleared without payment of duty during the period of dispute. They did so in terms of Rule 57CC/Rule 57AD(2) of the Central Excise Rules, 1944, as they had cleared their product (LABSA) on payment of duty and their by-product (SS Acid) without payment of duty during the said period. In the Revenue s appeals, apparently, the appellant s case is that 8% of the price of SS Acid is less than the input duty credit relatable to the quantity of this by-product and, therefore, the differential credit should be reversed by the assessee. In the assessee s appeals, we find a challenge against non-refund of 8% of the price of SS Acid deposited by them, on the limited ground that the refund claim was not hit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they made such payment under protest. Their claim for refund of the duty was rejected by the lower appellate authority after finding that the party had not established that they had not passed on the incidence of duty to any other person. This decision of the Commissioner (Appeals) has been challenged by the assessee on the ground that, where the duty was paid under protest, the bar of unjust enrichment was not applicable. This ground, which has been reiterated by learned counsel, cannot be sustained inasmuch as it has been settled by the Supreme Court that the factum of duty having been paid under protest is not relevant to applicability of the doctrine of unjust enrichment. We, therefore, do not find any merit in the assessee s appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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