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TMI Blog2011 (3) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Apex Court in Flock (India) Pvt. Limited (2000 (8) TMI 88 - SUPREME COURT OF INDIA). Apart from claiming that the appellants is a factory belonging to the State Government, no other facts which are necessary to bring the case within the four corners of the exemption notification have either been pleaded or proved in the matter. Nothing has been pointed out which could reveal from the records that the goods manufactured by the appellants were intended to be used by any of the Department of the concerned State Government. As regards the applicability of the principle of unjust enrichment, it is settled law that the burden in that regard squarely lies upon the assessee. Undisputedly, apart from tall claim in that regard in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled for exemption under Notification No. 74/93-CE dated 28.02.1993, the appellants had not discharged the burden of proof in relation to non passing of the burden of duty upon the customer and fourthly the claim being time barred. The impugned order is essentially challenged on the ground that the authorities erred in holding that there was finalization of provisional assessment. However, to the specific query from the learned Advocate for the appellants as to what part of the record would disclose the assessment was provisional, nothing was pointed out to us from the record and on the contrary the DR referring to the copy of the letter received by their office from the concerned Commissionerate submitted that the assessment for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot, be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund, the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act therefore, an order which is appealable under the Act is not challenged then the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim of exemption benefit under Notification No. 74/93-CE dated 28.02.1993. Undisputedly, apart from claiming that the appellants is a factory belonging to the State Government, no other facts which are necessary to bring the case within the four corners of the exemption notification have either been pleaded or proved in the matter. The proviso to the said notification clearly states that provided that such goods are manufactured by a factory belonging to a State Government and such goods are intended for use by any Department of that Government . Nothing has been pointed out to us which could reveal from the records that the goods manufactured by the appellants were intended to be used by any of the Department of the concerned State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty paid invoice from where they are further issued to operation divisions in numbers only . The statement nowhere discloses that the disbursement of the product to the Central Stores of PSEB and further that to the operation divisions was essentially meant for the use by the department itself. It is not mere supply of the goods that is sufficient but it is also necessary to show that they are to be used by particular department of the respective Government. There are not even averments in that regard in the reply. However, even assuming that such a statement was available in the reply to the show cause notice, it would not amount to compliance of the conditions to the notification. As already stated above, the necessary declaration in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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