9911796707
TMI Blog2014 (3) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... er. It was alleged that they were required to pay CVD @ 16% adv therefore, there is a short payment duty. On persuasion by the department, the respondent paid 16% duty under protest but have not requested for provisional assessment as per Rule 7 of the CER. Thereafter, adjudication took place and it was held that the respondents are entitled for exemption under Notification 6/02 dated 01.03.2002. Therefore, they were not required to pay duty @ 16% Adv. Consequent to the letter dated 13 August 2004, the respondent filed a refund claim of excess duty paid by them. A show-cause notice was issued for denial of the refund claim on two counts. First - On merits, benefit Notification NO. 6/2002 CE dated 01.03.2002 is not entitled to the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the C.A.'s certificate certifying that the duty incidence has not been passed on to the customers as duty was paid under protest. Therefore, the impugned order is to be upheld and the appeal filed by the Revenue be dismissed. 5. Considered the submissions and examined the records. 6. I find that in this case the issue whether the benefit of Notification No.6/2002 dated 01.03.2002 is available to the respondents or not has been settled by the Order dated 16.08.2004 and the said order has been accepted by the Revenue. Therefore, the issue is final and the respondents are entitled for the benefit of Notification No.6/02 dated 01/03/2002. As the order dated 16.08.2004 has attained finality the Revenue is not required to take the said grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced a C.A. Certificate stating that they have not recovered/claimed the amount of Rs. 36,00,934/- from the customers. The appellants have also produced letters from their customers who have certified that they have paid the CVD amount calculated @ Rs. 30 per Sq Meter and not @ 16% Adv. In this situation the tribunal decision relied upon by the appellants in the case of Alstom Ltd. vs. CCE Allahabad - 2004 (168) ELT 511 against which the Civil Appeal was dismissed by the Supreme Court - 2004 (173) ELT A 234(SC) is relevant. In the said decision the Tribunal held that bar of unjust enrichment is not applicable when buyers never paid the duty amount. I therefore find that the appellants have produced sufficient documentary evidence to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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