9911796707
TMI Blog2016 (9) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... sue was sub-judice and admittedly no duty was collected from the buyer of the products, whether the revenue is justified in refusing refund for the period September 2000 to February 2001 on the ground of unjust enrichment. Further it is an admitted fact that the appellant have shown the amount receivable in their balance-sheet at Rs. 1,96,65,263. It is further admitted fact that the amount has been paid during the period March 2004 to March 2005 by way of debit in their PLA. It is further admitted case of the revenue that the appellant had discounted the bills raised on Dabur India Ltd, raised for clearance of Lal Dant Manjan, from their bankers, which funds were deposited with the revenue through TR-6 challan's during the period March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Hon'ble Supreme Court of India, and upon insistence of the department deposited the differential Excise duty amounting to Rs. 1,96,65,263/- 'under protest' during the pendency of the appeal before the Supreme Court. 4. Subsequently, vide judgment dated 01.04.2005 (reported at 2005 (182) ELT 290 (SC), the Hon'ble Supreme Court set aside the order of the Tribunal and allowed the appeal of the appellant. The Hon'ble Supreme Court held that the product is rightly classifiable under sub-heading 3003.39 and not under heading 33.04 of the Central Excise Tariff Act, 1985. The Hon'ble Supreme Court vide its separate order dated 01.04.2005 also held that no penalty is imposable on the appellants. 5. Pursuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants were granted an opportunity of personal hearing and also filed written submissions before the Jurisdictional Assistant Commissioner. However, yet again the Ld. Assistant Commissioner vide Memorandum Order No. 184/2006-07 partially upheld the refund claim of Rs. 10,25,000/- and credited the balance amount of Rs. 1,86,40,263/- to Consumer Welfare Fund on the ground of Unjust Enrichment. Aggrieved by the above order passed by the Ld. Assistant Commissioner, the applicant filed an appeal with the Ld. Commissioner (Appeals). However, the Ld. Commissioner (Appeals) vide the impugned order dated 30.05.2008 rejected the refund claim on the ground that money has been raised from their buyers i.e. M/s Dabur India Limited by sale of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 11 B would apply. The Id. Commissioner also observed that although the amount in issue is shown in the balance-sheet as recoverable, remanded the matter to the Adjudicating Authority for further examination. In the 2nd round the Assistant Commissioner have observed that on examination he finds from the documents submitted that the amount of claim recoverable Rs. 10,25,000/- against the head l excise duty, recoverable' on Lal Tail for the year ending 31/3/2004, at page No. 156 of the letter which copy is the same as enclosed with the writ petition. Likewise at page number 158 of the letter the appellant have submitted, as in the writ petition showing amount of Rs. 1,96,65,263/- against the head Excise duty recoverable on L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving considered the rival submissions we find that the Id. Commissioner have misconceived the concept of unjust enrichment. The Id. Commissioner have also failed to understand the provisions of Central Excise as well the basic principles of accounting. Under the admitted facts, that the appellant have not raised any supplementary invoice for the Dabur Lal Tail cleared during the period September 2000 to February 2001 there can be no question of passing of duty on the buyer. Secondly no duty can be passed on to the same buyer for an earlier clearance of some different product, by clearance of some different product in the future time. Further it is admitted fact that the appellant have deposited the amounts by TR-6 Challans and debited the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
