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TMI Blog2004 (7) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... d 13-6-1998 was issued by Central Government specifying the rate of SAD in respect of the above goods as 4%. The respondents took the view that the Notification had retrospective effect and accordingly filed a claim for refund of the duty paid by them in excess of 4%. The Assistant Commissioner of Customs rejected the said view and dismissed the refund claim. He also observed that the importers had not produced any documentary evidence to prove that the burden of duty had not been passed on to their buyers. Aggrieved by the decision of the Assistant Commissioner, the party preferred appeal to the Commissioner (Appeals) and the latter allowed the refund claim subject to the test of unjust enrichment. In the present appeal, the Revenue is cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to ld. JCDR, retrospective operation of the Notification was barred by the proviso to Section 3A(1) of the Customs Tariff Act. It was further pointed out that the Notification itself did not purport to have retrospective effect. Hence, it was argued, the decision of the ld. Commissioner (Appeals) was erroneous. Reliance was placed on the Supreme Court's decision in CCE v. Prakash Pipes and Industries Ltd. [1997 (94) E.L.T. 18 (S.C.)], wherein it was held the provisions of the Provisional Collection of Taxes Act, 1931 had no application to a case in which goods manufactured during exemption period were cleared from factory after withdrawal of the exemption. The apex court held that such goods were liable to duty at the rate in force at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by notification in the Official Gazette, having regard to the maximum sales tax, local tax or any other charges for the time being leviable on a like article on its sale or purchase in India. Provided that until such rate is specified by the Central Government, the special additional duty shall be levied and collected at the rate of eight per cent of the value of the article imported into India." (Emphasis added). 4. The above provision was brought into force by the Finance Bill, 1998, read with Sections 3 and 4 of the Provisional Collection of Taxes Act, 1931. It was during the period of operation of the above provision as such that the respondents imported the goods and cleared the same on payment of SAD at the rate of 8%. The afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-06-1998 had retrospective effect by virtue of case law and Sections 3 and 5 of the Provisional Collection of Taxes Act, 1931. But no case law which could be relied upon to give retrospective effect to the Notification appears to have been considered by the ld. Single Member in the cited case, nor was it established that the provisions of the 1931 Act were applicable. Therefore, we have got to treat the view taken by the ld. Single Member as per incuriam. 5. In the case of Prakash Pipes and Industries (supra) cited by ld. JCDR, the apex court held that the provisions of the Provisional Collection of Taxes Act, 1931 were not applicable to a case where the goods manufactured during exemption period was cleared from the factory after wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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