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TMI Blog2011 (8) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... al, Sahab Singh, JJ. REPRESENTED BY : Shri H.B. Negi, SDR, for the Appellant. None, for the Respondent. [Order per : Sahab Singh, Member (T)]. These are two appeals filed by the Revenue against the orders-in-appeal No. SDK(2291-2292)313-314/MI/2003, dated 30-12-2003 passed by the Commissioner of Central Excise (Appeals), Mumbai dismissing the department s appeal. 2. The brief facts of the case are that respondents are manufacturer of cotton and blended yarn falling under Chapters 52 55 of the Central Excise Tariff and they are captively consuming the same. For the years 1998-99 and 1999-2000 the respondent filed declaration under Rule 173C of Central Excise Rules, 1944 declaring the assessable value in Form Annexure I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notices dt. 15-9-2001 for recovery of differential duty of Rs. 59,22,039/- and Rs. 64,63,097/- for the years 1998-99 and 1999-2000 respectively. The respondents aggrieved by these orders filed appeals before the Commissioner (Appeals) who vide his order-in-appeal No. SDK(1441-1442) 50-51/M-I/2001, dt. 30-3-2001 set aside the aforesaid order-in-original with a direction that sales and distribution expenses are to be excluded from assessable value and the value to be determined on the basis of the relevant years costing. Accordingly A.D. (Cost) was requested to submit his report based on the direction of the Commissioner (Appeals). A.D. (Cost) submitted his report for the years 1998-99 and 1999-2000 vide his letter dt. 31-7-2002 and on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue is in appeal before the Tribunal. 4. The learned SDR appearing for the Revenue contended that the provisional assessments for the years 1998-99 and 1999-2000 were finalized on 24-9-2002. He further submitted that as per Rule 9B of Central Excise Rules, the provisions of sub-Section (2) of Section 11B of the Central Excise Act (unjust enrichment) are applicable w.e.f. 25-6-1999 and it is mandatory for the cases of refund arising out of the finalization of the provisional assessment. The adjudicating authority as well as appellate authority have not properly examined the applicability of doctrine of unjust enrichment. He further contended that the respondent has not produced any documentary evidence such as balance sheet or Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondent has relied upon the decision of the Tribunal in the case of Grasim Industries Ltd. v. Commissioner of Central Excise, Jaipur-II reported in 2001 (127) E.L.T. 57 (Tri.-Del.). In said case Tribunal relying upon the judgment of the Supreme Court in the case of Oswal Agro Mills Ltd. reported in 1994 (70) E.L.T. 48 (S.C.) and Tribunal s decision in the case of Jupiter Cement Industries Ltd. reported in 1998 (102) E.L.T. 308 has held that Bank Guarantee cannot be held as payment of duty and, therefore, the refund does not attract the provisions of Section 11B of the Central Excise Act. (b) The Pace Marketing Specialities Ltd. v. Commissioner of Central Excise, Ghaziabad, reported in 2003 (157) E.L.T. 36 (Tri.-Del.). In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and the refund amount of Bank Guarantee will not attract the provisions of Section 11B of the Central Excise Act. In the said order the Tribunal has reproduced the observation of the Supreme Court in para 10 of the judgment in case of Oswal Agro Mills Ltd. which is reproduced below :- The question, therefore, is whether it can be said that the furnishing of a bank guarantee for all or part of the disputed excise duty pursuant to an order of the Court is equivalent to payment of the amount of excise duty. In our view, the answer is in the negative . Based on this judgment of the Supreme Court in the case of Oswal Agro Mills Ltd., the Tribunal has held the Bank Guarantee cannot be held as payment of duty and, therefore, refund does no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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