9911796707
TMI Blog2012 (5) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant are engaged in the manufacture of stranded wires of steel which are intermediate products and the same are used as inputs to manufacture the appellant's final product i.e. Auto Control Cables for motor vehicles. The final products are manufactured by the appellant's other factories where the intermediate products namely stranded wires were cleared on payment of duty and by availing CENVAT credit of duty paid in their other factories where the final product is to be manufactured. The appellant are discharging duty liability as per cost construction of such stranded wires plus notional profit as prescribed under Section 4 of the Central Excise Act, 1944 read with the relevant Valuation Rules. In July 1997, certain customers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued and the same was adjudicated by denial of refund claim which was confirmed by the lower appellate authority as time-barred as well as the refund claim is hit by bar of unjust enrichment. Aggrieved by the said order, the appellant are before us. 3. During the course of arguments the learned Advocate for the appellant pleaded that provision to Section 11B of the Central Excise Act, 1944 are not applicable to their case as this provision deals with the claim of refund of duty. He further pleaded that in this case, the appellant has made a deposit under protest during the course of investigation and there was no duty demand was confirmed against the appellant. While adjudicating the show-cause notice, the show-cause notice was dropp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fare Fund which is not in this case. In alternative, he submitted that the amount in dispute although collected from their sister concern/group companies by way of supplementary invoices but the sister concern/group companies have not taken the credit of the duty paid against the supplementary invoices raised by the appellant in consequence of the show-cause notice demanding differential duty. In support of this contention he placed on record the certificates issued by the concerned Jurisdictional Officer of Central Excise of their sister unit/group companies certifying that no credit has been taken on the strength of supplementary invoices. He also produced their annual report for the year 2009-09 duly certified by Chartered Accountant/Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund consequent upon to final assessment. Therefore, the impugned order is sustainable. The appeal filed by the appellant is required to be dismissed. 5. Heard both sides. 6. We have gone through the contentions made by both the sides before us. After considering the submissions, we find that in this case the appellant have deposited the amount under protest on differential value of the goods cleared by them to their sister unit/group companies. While adjudication, the show-cause notice demanding the differential duty was dropped and it was subsequently held in the order that the supplementary invoices issued by the assessee under Rule 57AE of Central Excise Rules, 1944 is declared void for the purpose of taking MODVAT/CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of unjust enrichment is applicable to refund consequent upon final assessment. In that case also the amount provisionally deposited was appropriated against as duty on finalisation of the assessment which was subsequently set aside which is not in this case. In fact in this case, the amount deposited by the appellant was never appropriated as duty. Therefore, the facts of United Spirits Ltd. (supra) are distinguishable from the facts of this case. From the facts of the case of Pride Poramer (supra) (which the learned DR relied on) is not coming out that whether the amount deposited is appropriated as duty or not. Moreover, in that case this Tribunal has relied on the decision of Sahakari Khand Udyog Mandal Ltd. only on principles of natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of this case as there is no appropriation of the amount deposited by the appellant as duty. In alternative, we have gone through the records produced by the appellant wherein it has been shown that the duty incidence has not been passed on to their sister concern/group companies by producing relevant certificates from the Range Superintendent and from the balance sheet as the same is shown as receivable from the Government. Therefore, the appellant are able to pass the bar of unjust enrichment, on that ground also their refund claim is maintainable. In result on both the counts i.e. on merits and on the ground of unjust enrichment the appellant has been able to make a case. Therefore, the appeal is allowed with consequential reli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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