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TMI Blog2011 (8) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... as preferred the present appeal before this Court. The facts leading to filing of the present appeal may be summed up thus: a) The appellant manufactured during the material period, namely, 1988 to 1992, inter alia, 'grey tyre cord fabrics' on job work basis for M/s. Dunlop (I) Ltd., out of yarn supplied by the said customer. The appellant completely stopped the said activity in the year 1993 and consequently, M/s. Dunlop India Ltd. had ceased to be the appellant's customer since then. The appellant, since the year 1995, has been manufacturing and selling to different customers yarn and sewing thread from the factory. b) The appellant had, during the material period, classified the said 'grey tyre cord fabrics' under the Heading CH 59.02 of CETA 1985 and the said classification was approved by the department. The appellant also claimed exemption from payment of basic excise duty under the Notification No.63/87 CE dated March1, 1987. Accordingly, the appellant did not pay any basic excise duty or special excise duty on the said fabrics but paid the specific additional excise duty under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of payment Amount paid (in Rs.) TR6 Challan No. 1. 14.05.2004 10,000,000 Misc. No.1/2004-2005 2. 21.06.2004 10,000,000 Misc. No.2/2004-2005 3. 20.08.2004 15,000,000 Misc. No.3/2004-2005 4. 19.10.2004 15,000,000 Misc. No.4/2004-2005 5. 21.12.2004 20,000,000 Misc. No.5/2004-2005 6. 22.01.2005 39,800,000 Misc. No.6/2004-2005 7. 21.02.2005 30,000,000 Misc. No.7/2004-2005 Total 139,800,000 j) The Supreme Court, vide order dated February 24, 2005 ultimately allowed the above Civil Appeal No.8675 of 2002 filed by the appellant. k) Consequent to the above order of the Supreme Court, appellant, vide its letter dated February 25, 2005 requested the Deputy Commissioner of Central Excise, Serampore Division, to refund the total amount of Rs.14,98,00,000/- which was paid under Section 35F of the Central Excise Act, 1944 during the pendency of the appeal proceedings in terms of CBEC Circular F. No.275/37/2K-CX, 8A, dated January 2, 2002. l) The Deputy Commissioner of Central Excise, Serampore Division, in response to appellant's above letter, advised the appellant to file a consolidated refund claim for Rs.14,98,00,000/- in Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accountant's certificate wherein, after verification of its records, the Chartered Accountant had certified that the amount for which the refund was claimed was not passed on to any other person and was being shown in the books of account of the appellant as 'Receivables'. Appellant also produced the requisite PandL Accounts and Balance Sheets as desired by the Adjudicating Authority. p) The Deputy Commissioner of Central Excise, Serampore Division, instead of settling appellant's refund-claim, issued a show-cause notice C.No.V(18)01/MCPL/Refund/SRMP/2004 dated Nil on March 5,2005 and asked the appellant to show cause as to why the refund claim for Rs.14,98,00,000/- should not be rejected as the appellant had not produced any documentary evidence to prove that the incidence of duty had not been passed on to buyers of the goods as required under Secs.11B and 12B of the Central Excise Act, 1944. q) The Appellant filed a detailed reply vide its letter dated May 10, 2005 denying the allegations raised in the show cause notice relying upon various case laws and instructions issued by CBEC. Appellant appeared for personal hearing on May 17, 2005 before the Deputy Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und claim lodged by it. v) The above order of the Commissioner (Appeals) was challenged by both the appellant as well as the Revenue before the Tribunal vide Appeal Nos.EDM-62/06 and No.EDM-9/-6 respectively. w) The Tribunal, vide final order No.A-538/Kol/-06 dated July 4, 2006 read with order No.M-302/Kol/06 dated July 13, 2006 passed in MA(ROM)256/06 filed by the appellant allowed both the appeals by way of remand to the Commissioner (Appeals) with direction to pass fresh order after hearing the appellant. x) In the de novo proceedings, appellant was heard by the Commissioner (Appeals-IV), Kolkata on August 17, 2006. The appellant, during the personal hearing, filed written submissions in detail along with Chartered Accountant's certificates together with appellant's balance sheets as of 31st December, 2001 and 31st March, 2005 in support of appellant's contention that Rs.14.98 crore paid by the appellant during the pendency of appeal proceedings had been shown in its financial books as 'receivable' under the head 'loans and advances'. Appellant, therefore, claimed that it had effectively proved that the incidence of the said amount had not been passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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