9911796707
TMI Blog2005 (12) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... 57/97-C.E. dated 30-8-1997. For the month of August, 1997, duty became chargeable at the rate of Rs. 600/- PMT under Notification No. 50/97-C.E., dated 1-8-97. The appellants came to know about the change of date of the implementation of the scheme of payment duty based on Annual Capacity Determination Rules after August. Therefore, they paid duty during the month of August based on the Annual Capacity Determination Rules. The duty for the month of August was paid on 4-9-97. When they came to know about the payment of duty for the month of August, at the rate of Rs. 600/- PMT, they filed a refund claim for the duty paid in excess during the month of August, 1997. During the month of August, 1997, they cleared 149.710 MT of ingots for home c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The adjudicating authority in its fresh order came to the conclusion that from the remarks kept on each of the invoices issued during the month of August, 1997 that the goods cleared under Section 3A vide Notification 33/97-C.E. (N.T.) dated 1-8-97, which required payment of duty at the rate based on Annual Capacity Determination Rules, 1997. The duty element was though not indicated in the invoices separately yet it is deemed to be included as the assessee could not prove that the duty burden was completely absorbed by them during the month and that the price hike was due to rise in price of the final product. He, therefore, held that that the provisions of unjust enrichment are applicable in the instant case as the assessee realised t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had passed on a burden of duty of Rs. 394/- PMT only against the duty of Rs. 600/- PMT payable by the appellants. Thus, the burden of duty of Rs. 342/- PMT paid in excess of what was payable in the month of August, 1997 by the appellants was never passed on to the buyer. Reliance was placed on the decision of the Tribunal in the case of Kothi Steel Ltd. v. CCE, Vadodara, reported in 2004 (167) E.L.T. 545 (Tri.-Mumbai), wherein it was held that considering the fact that the sale price has not changed and the appellants were paying duty at a fixed rate under the compounded levy scheme without having any relation to the actual clearance, the question of applying the bar of unjust enrichment in such a case cannot arise. As such, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the provision relating to unjust enrichment could not apply to payments made under Compounded Levy Scheme. We have perused the relevant sections and rules and heard both sides. It is clear that payment made under Section 3A (Compounded Levy) is also duty of excise. Therefore, refund of such amounts would attract provisions of Section 11B, including the provisions relating to unjust enrichment. The appellant has not brought on record any evidence to show that the higher duty paid has not been passed on to the buyers. No evidence by way of differential pricing or otherwise is available on record. The amount paid in excess is also insignificant i.e. Rs. 1,600/- per month. In the absence of evidence it has to be held that the claim is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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