9911796707
TMI Blog2005 (7) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... in-Appeal he has sanctioned an amount of Rs. 9,02,400/- along with interest @ 12% pa. The revenue has filed appeals with a request to set aside both the orders -in- appeal and pass such other orders as may be deemed fit. 3. Sri. L. Narasimha Murthy, learned SDR appeared for the Revenue and Sri. B.V. Kumar, the learned advocate appeared on behalf of the appellants. 4. The brief facts of the case are as follows: The appellant is the manufacturer of Asbestos from Rock. Consequent to the demand from the department the appellant cleared goods during the period from 1988-89 to 1993-94 on payment of duty. The issue of excisability of Asbestos fibre was agitated before various judicial fora. The issue was settled by the Hon ble Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 dated 15-4-2002. (ii) Order-in-Original dated 34/2002 dated 24-10-2002 rejecting the refund claim for Rs. 14,86,706/- under Section 11B of the Central Excise Act, 1944 on account of unjust enrichment. The respondent appealed against the above order. The Commissioner (Appeals), passed the second impugned Order in appeal No. 38/2004, dated 24-2-2004. In the above order, the Commissioner (Appeals), ordered a refund of Rs. 9,02,400/-along with interest @ 12% p.a. out of the total refund claim of Rs. 14,86,7076/-. 5. The Commissioner (Appeals) has scrutinized carefully the available records and granted relief to the respondents. The only issue is whether the duty burden has been passed on to the buyers or not. If the duty burden has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner (Appeals) has ordered to pay interest @ 12%. However, in terms of the provisions of Section 11BB (introduced w.e.f. 26-05-1995), interest is payable from the date of receipt of the refund application till the date of payment. The applicability is to be restricted to the above extent only without prejudice to the above contentions. v. Further, different interest rates have been specified during different periods, the present interest rate being @ 6% p.a. The Commissioner (Appeals) has erred in granting 12% interest p.a., for the entire period. vi. Similarly in the case of the second appeal also the Revenue has come in appeal on the same grounds. 7. Sri. B.V. Kumar, learned Advocate for the respondents adduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made to the effect that Central Excise duty was not charged/demanded/collected, as Writ Petition was filed by them in the Honorable Supreme Court of India. Under these circumstances, the respondents are rightly entitled for refund of Rs. 11,74,133/- pertaining to the supplies of asbestos to 13 other buyers. As regards the interest @ 12% the Commissioner (Appeals) has sanctioned the refund with interest @ 12% in accordance with supreme Court order in IA Nos.1-2 in C.A.1359 1360/1980 dated 10-8-2001. VII. Since the dispute is prior to 1995, provisions of Section 11BB cannot be applied to the instant case as the section was introduced w.e.f. 26-05-1995 only. VIII. He relied upon the decision of Mafatlal Industries Ltd. v. UOI - 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a matter of right. The burden is on them on to show that the amount paid to the department has not been collected from the buyers, even if it is not excisable. The learned advocate conceded that point and said that as far as the respondents are concerned they had amply demonstrated that the amount paid to the department has not been passed on to the buyers. 10. We have gone through the records of the case very carefully. The fact that Asbestos fibre is not excisable, has been decided by the Apex Court. . Consequent to the above decision only the refund claims had arisen. The refund relates to the period from 1988-89 to 1993-94. The ultimate Orders in original were passed in the year 2002. In view of the long time, which has elapsed from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.50, is hit by the bar of unjust enrichment. In our view, the amount allowed by the Commissioner (Appeals) should be reduced to this extent. As regards interest @ 12%, in our view, this is covered by the interim order of the Supreme Court referred to by the learned Advocate for the respondent. The Supreme Court order has been taken into account by the Commissioner (Appeals). In these circumstances, we do not find any infirmity in the Orders in Appeal, except for the above reduction in the refund allowed by the Commissioner (Appeals). After taking into account, the cases where there is evidence for duty burden being passed on to the buyer, we allow refund to the tune of Rs. 35,50,906/- (Rs. 35,94,234/- minus Rs. 43,328/-) allowed vide OIA N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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