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TMI Blog2014 (3) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... holesale price of the product. When the payment of differential excise duty was made by the respondent under protest and the M.R.P. has not been raised by the respondent, we fail to see that how the incidence of such duty shall be treated to have been passed on the buyer of such goods. The Assistant Commissioner Central Excise had referred to the letter dated 18.12.1997 sent by the respondent by which it was mentioned that respondent has not change maximum retail price or wholesale price and is paying the duty under protest. Amount of ₹ 10,94,263/- was deposited by the party on their own has not been shown in the balance sheet of relevant year 1997-98 in the schedule of loans and advances to be recovered for the department is not sustainable as the party had deposited this amount under protest as an advance payment of central excise duty pending enquiry and investigation and intimated this fact to the Additional Director General of DGAE, Central Excise New Delhi vide their letter dated 06.12.1997 and has also shown in their Balance Sheet of the company for whole of the group in the relevant year 1997-98 in the schedule of "OTHER CURRENT ASSETS". - Revenue had not disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be claiming the refund once the issue is resolved and the claim will, therefore, be not hit by unjust enrichment clause. The respondent from 22nd January, 1998 to 15th December, 1998 deposited total differential excise duty amounting to Rs. 01,14,78,517/-. Against the adjudication order dated 11.12.1997, respondent preferred an appeal before the Commissioner (Appeals) Central Excise, which was dismissed and further the respondent again preferred an Appeal before the Tribunal, which appeal was allowed on 14.1.2000 setting aside the demand. The Tribunal while setting aside the demand had observed that it is open for the department to arrive at correct classification of the impugned goods in appropriate proceedings. An order dated 27.12.2001 was passed classifying the product Gulabari under Chap. Heading 3303.00. Against the said order appeal was filed before the Commissioner which was dismissed on 31.3.2003 and against the order of Commissioner, an Appeal was filed before the Tribunal, who vide its order dated 10.10.2003 set aside the order of the Commissioner. The respondent, thereafter, filed a refund claim of Rs. 01,14,78,517/- on 13.1.2004. The Assistant Commissioner vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven after provisional classification in sub heading 3303.00 and the differential duty was paid by the respondent which duty was not passed on the buyer. He submits that the balance sheet filed before the department mentioned about the total excise duty recoverable. He further submits that the Tribunal has rightly allowed the appeal of the respondent and both the questions of law framed in the appeal be answered in favour of the respondent. We have considered the submissions of the learned counsel for the parties and perused the record. From the facts as noted above, it is clear that the differential excise duty paid by the appellant after the order dated 11.12.1997 related to the period 1st March, 1990 to 30 September, 1997. The classification of the product by the department, which imposed 18% excise duty, was challenged by the respondent and in pursuance to the demand as made by order dated 11.12.1997, the deposits were made by the respondent under protest after writing letter dated 18.12.1997 which has been brought on the record as Annexure-C.A.-3. In the letter dated 18.12.1997, it was clearly mentioned that the respondent does not agree with the classification of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er heading different from the heading claimed by the appellant. Demand was subsequently set aside by the Tribunal. In the balance-sheet for the financial year, 1997-98 this amount is shown as excise duty recoverable from the revenue department. The amount in question was also shown in subsequent balance sheet as recoverable excise duty. We find that the Tribunal in various decisions relied upon by the appellants has taken a view that in case balance sheet amount of refund was shown as recoverable it has been taken as established that the appellants have not passed on extra duty burden but have borne the same themselves. In these circumstances, as the balance sheet which is as per record under the Companies Act showing the amount as recoverable from the revenue and in view of the earlier decisions on this issue impugned, order is set aside. Appeal is allowed. The Tribunal has also relied to the balance sheet which is brought on record by the respondent stating about the amount recoverable as excise duty. The Commissioner in its order dated 6.11.2006 which was in favour of the department has observed that the amount was shown as recoverable from the department in the balance s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as to whether the principle of unjust enrichment would, on facts, apply or not. Civil Appeal No. 6113 of 1999 In a claim for refund of duty, the respondent raised two contentions. Firstly that the duty had not been passed on to the consumer and the principle of unjust enrichment did not apply. The second contention was that in any event, in view of the decision of the Bombay High Court in the case of Solar Pesticides (India) Limited v. Union of India , the principle of unjust enrichment was not applicable in cases of captive consumption. Neither the Assistant Commissioner nor the Commissioner (Appeals) accepted any of the two contentions. It was held that the respondent had failed to prove that the incidence of duty in respect of the imported goods had not been passed on. On appeal filed by the assessee, the Tribunal allowed the same following the decisions of the Bombay High Court in Solar Pesticides (India) Limited v. Union of India , which we have now held is not a good law. The Tribunal did not decide as to whether the assessee had passed on the incidence of duty to the consumer. That contention would require consideration. Accordingly, we allow this appeal, set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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