9911796707
TMI Blog2007 (2) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... of packaged drinking water under the brand name "Manik chand Oxyrich", belonging to other person. As their factory was situated in rural area, they availed the benefit of small scale exemption notification No. 8/03 dt. 1-3-03. It is seen that upto the period 25-3-03, appellant cleared the said product without payment of duty. However their factory was visited by their Jurisdictional Deputy Commissioner Central Excise, who entertained a view that the appellant was not entitled to exemption and accordingly directed them to pay the duty. Accordingly appellant paid the differential duty of Rs.8,132/- in their cenvat account vide debit entry No. 16 dt. 24-3-2003 for the clearances effected during February and first fortnight of March. It was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same to be barred by limitation. The said part of the impugned order is appealed against by the appellant. 5. As regards the remaining claim of Rs.5,38,342/-, which was within the period of limitation but rejected on the ground of unjust enrichment by the Dy. Commissioner, he accepted the appellants stand that inasmuch as duty was being paid in terms of Section 4A of the Central Excise Act, 1944 on the basis of MRP fixed, and the said MRP remained unchanged during the entire period, the refund would not be hit by the bar of unjust enrichment. Accordingly, he sanctioned the refund of the above amount. The said part of the impugned order is appealed against by the Revenue. 6. I have heard both the sides duly represented by Shri Mayur S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty under protest is to inform the Revenue that the assessee is not in agreement with the Revenue's view but to avoid any confrontation at that particular point of time, duty is being paid and the assessee reserves his right to settle the same on the out come of the final verdict on the disputed issue. As such it cannot be said that though the initial payment on 24-3-03 was under protest, the subsequent payments were voluntary and were hit by the bar of limitation. It has to be concluded that the appellant paid the duty under protest and on the final dispute about exemption being settled in their favour, was entitled to the refund of the same. Gujarat High Court in the case of Shree Rain Food Industries, 2003 (152) E.L.T. 285 (Guj.) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy of the affidavit dated 2nd September, 2005 duly notarized and solemnly affirming that they have not passed on the burden of duty involved to another person and have also submitted documentary evidence to show that MRP of goods remained constant before and after payment of excess duty. 9. As against the above Revenue has relied upon Calcutta High Court decision in the case of Bata Shoe (P) Ltd., 2004 (169) E.L.T. 3 (Cal.) laying down that when there is no direct collection from customers, duty must have been reflected in ultimate cost of finished goods. They have also referred to Hon'ble Supreme Court decision in the case of Solar Pesticides Pvt. Ltd., 2000 (116) E.L.T. 401 (S.C.), laying down that when duty paid on raw materials is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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