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TMI Blog2015 (1) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... und claim of Rs. 13,96,53,003/- on 25-7-2012. The refund claim had been filed by the appellants on the grounds that there was a classification dispute w.r.t. the said product. And the then Deputy Commissioner, Central Excise Division, Sangrur vide Order-in-Original No. 41-44/C.E./2001, dated 5-3-2001 had held that the said products cleared by the appellants should be classified under Central Excise Tariff sub-heading 1904.10 attracting Central Excise duty @ 16% instead of sub-heading 2108.99 attracting nil rate of duty as was claimed by the appellants. The appellants had filed an appeal before Commissioner (Appeals) against the order dated 5-3-2001 of the then Deputy Commissioner, which was dismissed vide Order-in-Appeal No. 353 & 354/C.E./CHD-II/2001, dated 28-9-2001. Commissioner (Appeals) held that the said products were classifiable under sub-heading 1904.10. The appellants started paying duty on the said products, from March, 2001 and continued till October 2002. The appellants also challenged the order of the Commissioner (Appeals) before Hon'ble CESTAT (earlier 'CEGAT'), New Delhi who vide its Final Order No. 249-252/2002-D, dated 26-9-2002 [2003 (151) E.L.T. 180 (Tri. - Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent vide Finance Act, 2007 with effect from 11-5-2007; that the refund claim in the present case pertained to the period from March, 2001 to October, 2002; that during the period prior to 11-5-2007, there was no relevant date prescribed in the Explanation to Section 11B in so far as consequential refunds were concerned; that therefore, applying the clause (ec), which was introduced much later than the disputed period to decide about the maintainability of the refund claim pertaining to the period of 2001-02, was wrong; that clause (ec) of Explanation to Section 11B of the Act had not been given retrospective effect whatsoever and, therefore, the same could not be made applicable; that the said provision cannot apply to the duties paid for the periods prior to the said amendment; that hence the present case was not governed by the time-limit prescribed in the said clause (ec); iii. that clause (ec) was inapplicable to the present case for yet another reason; that Section 11B of the Act incorporates that wherever the duty has been paid under protest, there is no time limit prescribed for filing the refund claim; that second proviso to Section 11B of the Act s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e definition of retail sale price in the Explanation to Section 4A was inclusive of the duties and taxes, the duty paid by the appellant during the relevant period had formed part of the retail sale price and, therefore, the appellant had passed on the duty burden to the consumers; that the observation in the impugned Order were incorrect for more than one reason; that the appellants had made their intention of not collecting the excise duty from the buyers very clearly in their letter filed with the department when they started paying duty to the department; that the duty paid under protest was also indicated on the face of the invoices issued by the appellant to the buyers; that the appellants rebuts the presumption of unjust enrichment based on two vital factors; that once the appellants started paying duty under protest in respect of the products in question, the appellants stated the amount of excise duty paid as amount recoverable from the excise authorities under the schedule relating to loans and advances in their balance sheets; that the practice of showing the excise duty amount as amount recoverable from the excise authorities has been continuing right from the period in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; Supdt. Engineer v. CCE, Trichy - 2008 (227) E.L.T. 303; * Krishna International v. CC - 2008 (225) E.L.T. 364; * MRF Ltd. v. CC (Port), Kolkata - 2008 (225) E.L.T. 246; * Sanghvi Shoes Accessories P Ltd. v. CC - 2008 (224) E.L.T. 95; * General Commodities Pvt. Ltd. v. Commr. of ST - 2010 (18) S.T.R. 460; vii. that the adjudicating authority while rebutting the claim of the appellants had wrongly relied upon (i) decision in the case of Toyota Kirloskar Motor Ltd. reported at 2012 (286) E.L.T. 690 (T), (ii) that a CA certificate was just a corroborative evidence and cannot be treated as conclusive evidence, and (iii) the appellant had not committed that the duty has not been recovered from the buyers; that the appellants had not passed on the duty to the consumers; that the observation of the adjudicating authority are not correct as the appellants had already submitted the relevant evidence to prove their contention; that in support of their contention they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 641. 4. Personal hearing in the cases was held on 8-1-2014. Ms Shruti Kakkar, General Manager (Legal) appeared on behalf of the appellants and stated that she may be given a short adjournment for one day as their advocate Shri Amit Jain from Delhi could not come today and would be able to come on 9-1-2014, if allowed. Accordingly, the case was adjourned to 9-1-2014. Shri Amit Jain, Advocate and Ms Shruti Kakkar, General Manager (Legal) appeared on 9-1-2014 on behalf of the appellants and reiterated the submissions made in their appeals. They further filed a compilation of case laws relied upon by them and emphasised their points. They also filed a compilation of various Annexures containing documents mentioned in their appeal. 5. I have gone through the appeal papers and the submissions made by the appellants at the time of personal hearing. The issue before me, to be decided is whether the appellants are entitled for refund of duty or not. Besides this, it also needs to be decided that what was the relevant date in the present issue and whether the refund hit by time limitation as well as unjust enrichment or not? 6. As discussed supra, I find that the refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made applicable only in respect of the duties which had been paid after the said amendment and for which the refund claims are being filed thereafter. Therefore, I hold that the clause (ec) supra of Explanation to Section 11B of the Act, cannot be applied to the duties paid for the periods prior to the said amendment. 7.2 Further, I find that the clause (ec) is also not applicable to the present case as the duty was paid 'under protest' by the appellants. This is evident from the letter dated 7-3-2001 filed by the appellants with the Deputy Commissioner, Central Excise & Service Tax Division Sangrur, intimating thereunder that they would pay the duty on "Lehar Kurkure Namkeen" and "Cheetos Tomato wheels namkeen" under protest. Therefore, the relevant date of one year for filing refund, become nugatory in the present case, as evident from the plain reading of the provisions of Section 11B of the Act, supra which states that that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. Further, the appellant's contention that they did not file the refund after order dated 26-9-2002 as the matter had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Accountant's certificate dated 18-2-2013, validating the entries in balance sheets of the M/s. Pepsi Foods Limited (PFL) & M/s. PepsiCo India Holdings (PIH) for the material period; (iv) that there was no fluctuation in price of the products sold by the appellants during the disputed period and for the periods much after the disputed period; that in support of their contention they have relied upon the chart which showed the MRP at which the products in question have been sold during that period i.e. prior to 2001-02 during the disputed period, namely, 2001-02 and 2002-03 and much after the disputed period, namely, 2003-04 onwards; that the MRP of the products has remained unchanged in any of the periods, namely, when no duty was being paid and duty was being paid under protest and when the appellant stopped paying the duty on these products; that this showed that the payment of excise duty on these products had got no bearing whatsoever on the price of the products and the price of the products remained the same. 8.1 I find from the balance sheets filed by the appellants for the relevant period that they have shown the refundable amount as recoverable f ..... 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