9911796707
TMI Blog2016 (7) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... ad filed the classification list in terms of the erstwhile Central Excise Rules, 1944 claiming that no duty is payable on refined oil, since the activity of refining of edible oil is not a process of manufacture. Classification of the product was disputed by the Department. The classification dispute was agitated before various judicial forums. The Department insisted for payment of Central Excise duty vide letter dated 04.03.1991. Pursuant to such letter, the assessee had deposited the disputed amount on 08.02.1992 and 10.02.1992. After protracted litigation, the issue was finally resolved by the Hon'ble Supreme Court vide their judgment dated 23.11.2004 in favour of the assessee. Pursuant to the favourable judgment, the assessee had filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the facts of the case, for the reason that clearances of the excisable goods were effected between 01.09.1984 to 28.02.1986 and in the corresponding invoices, no Central Excise duty had been charged and collected from the buyers of the goods. Further contention of the assessee is that since the duty attributable to the goods cleared during 1984-1986 was deposited by the appellant in 1992, there was no scope or occasion for passing on the incidence of the duty to the buyers of the goods. The other submission of the assessee is that the Central Excise duty amounting to Rs. 5,35,633/- has been shown in the balance sheet as claims receivable from the Department, and thus, the incidence to the extent of the refund claim amount has been borne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority cannot part with by returning the same. The relevant paragraph in the said judgment is extracted below. "4. The impugned order returning the application of the petitioners for refund of claim is, therefore, illegal and void and is liable to be set aside only on the ground that it was the duty of the Assistant Commissioner to have considered the claim application and made an order thereon under the provisions of Section 11B of the Act, and the relevant rules. The impugned order dated 10-1-2003 is, therefore, hereby set aside with a direction that on presentation by the petitioners of the original application dated 20-12-2002 which was returned to them under the impugned order, that application shall be taken on record by the Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral Mills-2007 (210) ELT 342 (P&H) have held that incidence of duty could not be transferred to buyer after date of clearance, as duty had been paid on subsequent date, thus presumption raised under Section 11B in the Central Excise Act, 1944 is rebutted by the assessee. Further I find that in the balance sheet as on 31.03.1992, the appellant had shown the disputed duty under the head "current assets, loans and advance", showing the narration as Central Excise duty paid under protest. The accounting entry made in the balance sheet proves beyond any shadow of doubt that the incidence of disputed duty had been borne by the assessee and not passed on to any other person. Hence, the doctrine of unjust enrichment is not applicable in the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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