9911796707
TMI Blog2011 (8) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... urer 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 II(A). On scrutiny of the aforesaid Annexure, it was observed that value claimed therein was based on estimated cost. For arriving at assessable value of the captively consumed goods under Rule 6(b)(ii) of Valuation Rules, 1975, it is necessary to take into account various elements such as profit, cost of material, labour cost, overheads including administration cost, advertising expenses, depreciation, interest etc. and the assessee was not able t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the basis of the A.D. (Cost)'s report, the Deputy Commissioner had finalized the assessment for the years 1998-99 and 1999-2000 vide order-in-original No. E/24/2002 and E/25/2002 both dt. 24-9-2002. On the basis of the worksheet submitted by the A.D.(Cost), it was found that the respondent has paid the excess duty. Consequent upon the finalization of provisional assessment since the respondent has paid the excess duty assessee filed refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 Chartered Accountant Certificate to substantiate their claim that duty has not been passed on either directly or indirectly to any other person. He further relied upon the Board Circular No. 523/19/2000-CX., dated 6-4-2000 wherein it was clarified that principle of unjust enrichment would be applicable in respect of refund of duty paid on imported raw materials even if captively consumed in the manufacture of final product. He therefore reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 998 (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 this case the Tribunal while following its earlier decision in the case of Grasim Industries Ltd. (supra) as well as Board Circular No. 275/37/2000-CX.8A, dated 2-1-2002 issued by Central Board of Excise & Customs has held that the provisions of Section 11B are not applicable to refund of Bank Guarantee amounts. 6. Heard both sides. 7. The short issue involved in this case is whether the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not attract the provisions of Section 11B of the Central Excise Act. We find that the present case is squarely covered by the decision of the CESTAT and accordingly the provisions of Section 11B will not be applicable in the present case. We, therefore, uphold the order-in-appeal passed by the Commissioner (Appeals) and dismiss the Revenue's appeals.
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