9911796707
TMI Blog1999 (2) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 6,72,171.72 holding that the proforma credit of duty paid on inputs was not available to them since the final product was cleared at nil rate of duty under Notification No. 272/79 dt. 18.10.1979. The Collector (Appeals) vide order dt. 1.3.1986 directed the Respondents to deposit the amount demanded by the Assistant Collector as a pre -condition under Section 35F of the Central Excise Act. The Respondents deposited the said amount in R.G 23 Part II and P.L.A. on 31.3.1986. Subsequently the Collector (Appeals), under order dated 17.1.1989, allowed the appeal filed by the Respondents holding that demand was hit by time limit. The claim for refund of amount deposited by them was rejected by the Assistant Collector, under adjudication ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the refund claim which has been made before the commencement of Amendment Act, 1991. She also reiterated the grounds of appeal as contained in the memorandum of appeal and emphasized that payment of amount under protest was not mentioned in the PLA and the relevant R.T. 12 Return and as such the claim was hit by time limit specified in Section 11B of the Act. Shri R.G. Sheth, Ld. Advocate, submitted that they were entitled to the refund of duty paid by them as a matter of right without having to make a refund application as per the provisions of Sub -section (3) to Section 11B of the Act; that it was incumbent upon the Assistant Collector to have refunded the deposit amount without even their having to make a refund application; that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, 1991), they cannot be reopened and/or be' governed by Section/HB(3).." He also referred to the decision in the case of Sandoz (India) Ltd. v. CCE in which the Tribunal held that if the Revenue felt that the order was not correct, they had a right to appeal against it, they cannot readjudicate the issue involved in the appeal in an ingenious manner that has, in effect, if not in law, nullified the Tribunal's order. Such readjudication apart from being subversive of judicial discipline, will bring the rule of law and administration of justice into ridicule and contempt. He also relied upon the decision in the case of Suvidhe Ltd. v. UOI 1996 in which it was held that in respect of refund of pre -deposit made under Section 35F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed under Section 11B or insisting on a separate letter of protest before payment does not arise." (5) The second issue involved in the appeal is whether the provisions of amended Section 11B are applicable to the facts of the case or not. The Appellants have rereferred to Bombay High Court decision in Suvidhe Ltd. (supra), for contending that Section 11B cannot have application in case of refund of deposit of amount under Section 35F of the Act. In the case of Union of India v. Jain Spinners Ltd. , disputed amount of duty was deposited with the Court instead of being paid to the Department as per court's order. The Supreme Court observed that the amount which was deposited by the Respondents in the court was towards the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed finality as no appeal against the same was filed and as per provisions of Section 11B(3) of the Act at the relevant time, the department was bound to refund the duty even without their filing the refund claim. We find that the Collector (Appeals), in order dt. 17.1.1989 set aside the adjudication order dated 16.9.1985 holding that the demand was barred by time limit. The department has admittedly not filed any appeal against this order. However, the refund claim filed by the appellants was examined by the Assistant Collector in accordance with law and was rejected vide order dt. 31.1.1990 on the ground of time limit and unjust enrichment. This order of the Assistant Collector was also set aside by the Collector (Appeals) vide the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 31.1.1990 that the appellants had not denied the fact of recovery of duty from the Customers. On the other hand, the appellants have contended that they had not recovered any duty from their customer whom the impugned goods were supplied by them. We are of the view that the aspect of recovery of duty from the customers has not been examined in detail by the Assistant Commissioner. In the interest of justice, we remand the matter to the Assistant Collector with the direction to examine whether duty was passed on by the appellants to any other person and pass appropriate order after affording a opportunity of hearing to the appellants. The Appellants will be at liberty to produce any evidence before the Assistant Commissioner in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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