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TMI Blog2012 (7) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the invoice, the total amount of duty paid to the Central Excise department as is evident from the ARI assessment is less than the amount recovered as duty from the buyers, the respondent has not been able to prove that the amount sought to be refunded by the assessee was not recovered from buyers - against assessee. - E/322/04 - - - Dated:- 22-6-2012 - Mr S.S.Kang, Mr.Sahab Singh, JJ. Shri V.K.Singh, Addl.Commissioner(A.R) for Appellant Shri Gajendra Jain, Advocate for Respondent Per : Sahab Singh This is an appeal filed by the Revenue against the order passed by the Commissioner of Central Excise (Appeals) who allowed the appeal filed by M/s. GTC Indus.Ltd. ( hereinafter referred to as the Respondent). 2. The brief facts of the case are that the respondents are engaged in the manufacture of Cigarettes and they had initially filed refund claim of Rs. 54,40,642.71 vide their letter dated 30.10.1984. This amount was paid by them against show cause notice dated 23.12.1982 issued by the Range Supdt. The said amount was paid by the respondent vide TR6 challan No.82/83/280 dated 3.1.1983 being the differential duty on the clearances of cigarettes effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to decide the entitlement of the respondent for refund of Rs. 35,57,094.74 in the light of Section 11B of the Central Excise Act. Meanwhile, the respondent has initiated contempt proceedings vide Motion No.1230/92 against the department for having not paid the amount in spite of High Court order. The said Notice of Motion was disposed of by the Court vide order dated 25.2.1993 directing the Asstt.Commissioner of Central Excise, Dn.VI to dispose of the claim within three months from the date of order in accordance with Sec.11B of the Central Excise Act, 1944. Pursuant to the High Court s order dated 25.2.1993, the then Asstt.Commissioner of Central Excise Dn.VI decided the matter vide Order-in-Original dated 22.5.1993 rejecting the respondent s refund claim of Rs. 54, 40,642.71 subsequently reduced to Rs. 35,57,094.74 on the ground of unjust enrichment. The respondent preferred an appeal against the said order and the Commissioner of Central Excise(Appeals) vide order No. ZBN/12/M-V/99 has remanded the case back for denovo adjudication with direction to decide the entitlement of the respondent for refund in the light of Section 11B of the Central Excise Act as per Supreme Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s has been explained by the original authority by way of illustration for invoice No.01/w/120061 dated 7.12.1982 for brand Panama Virginia special. He submitted that the gross price charged in the invoice was Rs. 69.18 . Out of this, the post manufacturing expenses amounted to Rs. 0.78 only and after deducting this amount and the duty amounting to Rs. 61.66 calculated at tariff rate the assessable value would arrive at Rs. 6.74. On this assessable value, the duty of Rs. 33.63 was paid to the department at the time of clearance of the goods. He, therefore, submitted that from the invoice value of Rs. 69.18 the respondents have recovered the duty amounting to Rs. 61.66 from the buyers. Therefore, the refund claim submitted by the respondent is clearly hit by the doctrine of unjust enrichment under Sec.11B of the Act and the claim is therefore rightly rejected in the Order-in-Original. He submitted that the Commissioner(Appeals) has not properly appreciated the fact and allowed the appeal filed by the respondent. He therefore requested that the appeal filed by the Revenue required to be admitted by the Tribunal. 8. The Ld. Advocate appearing for the Respondent submitted that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be rejected on ground of unjust enrichment under Sec.11B of the Act. 10. Ld. Sr.Counsel appearing for the respondent relied on the judgment of the Patna High Court in the case of Batta Shoe Company Private Ltd. Vs. Collector of Central Excise, Patna and Others in Civil Petition No.1330 of 1970. In this case the issue before the Court was valuation of Footwears for the purpose of exemption Notification No.171/67 dated 24.7.67. It was held by the Court that the assessable value was to be worked out as per the formula embodied in Sec.4 of the Central Excise Act and the fact no duty was collected by the assessee was not relevant. This decision of the Patna High Court was affirmed by the Hon ble Supreme Court in Batta Shoe Company (P) Ltd. Vs. CCE -1985(21)ELT 9(S.C.). In case of Asstt.Collector of CE. vs Bata India Ltd. -1996(84)ELT 164 (S.C.) the issue before the Court was what shall be value of footwears for the purpose of exemption Notification No.49/86 dated 12.2.1986 and Notification No.89/87 dated 1.3.87 and the three Judges Bench of the Court has held that when manufacturer has included in the wholesale price any amount by way of tax even when no such tax payable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff rate Rs. 61.66 Less on the post manufacturing expenses Rs. .78 Assessable value Rs. 6.74 13. The respondent has determined the assessable value of Rs. 6.74 after deducting the duty element of Rs. 61.66 calculated at the tariff rate from the invoice price whereas they had paid the duty of Rs. 33.63 to the department at the time of clearance of the goods. We find that the argument of the Revenue that since invoice price of Rs. 69.18 was recovered from the customers, the burden of Rs. 61.66 was also passed on to the customers has considerable force and cannot be rejected. 14. We also find that the original authority in para 12 of the order refers to statements of Shri N.V. Bangera, Manager(Accounts) of respondent company recorded under Sec.14 of the Central Excise Act which have been discussed at length by the Asstt.Collector of Central Excise in earlier order dated 22.5.93. We find that in response to the Question No.8 in his statement dated 19.5.93 Shri Bangera has stated as under:- The invoice price charged to the buyers from 30.11.82 to 07.12.82 includes the duty amount calculated at the rate of 440% Adv. plus Rs. 32/- specific amount of duty paid as expl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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