9911796707
Advanced Search 
TMI Blog2017 (8) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... gaged in manufacture of Portland Cement falling under Chapter Heading No. 2523 of Central Excise Tariff Act, 1985 and were paying duty leviable thereon as per Notification No. 4/2006 CE dated 01 March, 2006, as amended, @ 12% of MRP or Rs. 400/- per M.T. Subsequently Notification No. 4/2006 CE was further amended vide Notification No. 58/2008 CE dated 07 December, 2008 by which effective rate of duty applicable in the case of appellant's product was further reduced from 12% of MRP of Rs. 400/- per M.T. to @ 8% of MRP of 290/- per M.T. Due to the fact that the said Notification No. 58/2008 CE came into knowledge of the appellant on 08 December, 2008, the assessee continue to clear the goods manufactured by them on 07 December, 2008 at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is payable on the basis of MRP/RSP, preprinted on each cement bags. Further, the invoices noticed by the Revenue are only Excise Invoice in which only duty payable has been shown for the purpose of payment of Excise Duty to the Government. There is no doubt that in these invoices any amount payable by the customer has been shown. Therefore, the customers have not paid any amount on the basis of the Excise Invoices. That in the commercial invoices assessee is mentioning the duty amount only to show that the impugned goods are duty paid and corresponding excise invoice number is also mentioned. The amount shown as excise duty, had no relation with the commercial value and showing the same to match the price of cement as per the prevailing m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burden of duty has not been passed on to the third party. Further, reference was made to the ruling in the case of Sahkari Khand Udyog Mandal Ltd. v/s CCE reported at 2005 (03) LCX 008 (SC) where it is laid down the principle that it has to be proved beyond doubt by the person claiming refund, that the burden of duty is not passed on to the customers. It is further observed that the appellant assessee have not fulfill the requirement of Statutory Provisions of law in the instant case and as such the refund was not admissible to them. 4. Being aggrieved the appellant assessee is before this Tribunal on the ground that the clearances made on the basis of MRP which was preprinted on each cement bag. There is no question of passing on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it have been held that the duty differential burden was not passed on and accordingly, unjust enrichment is not attracted. Another Coordinate Bench of this Tribunal in Girish Foods & Beverages Pvt. Ltd v/s CCE - 2007 (211) ELT 388, were payment was made under protest and the protest and was lodged at the time of first payment of duty, though elaborate procedure for payment under protest was not followed, this Tribunal held that it cannot be said to have paid the subsequent duty voluntarily and held that limitation for refund is inapplicable under Section 11 B of the Act. As regards unjust enrichment, under the fact that payment of duty was based on MRP valuation, were price remained constant irrespective of fact of payment of higher duty an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classifiable under sub heading 4009.99. The assessee filed two applications for refund for payment of excess duty. The said applications were rejected by the authority observing that the same would amount to unjust enrichment. The Apex Court held on the issue of unjust enrichment, despite laws of excise duty in a given situation being held to be illegal, in the event is found that the assessee in fact passed on burden of excise duty to its customers, applying principle of unjust enrichment, court would not ordinarily direct refund thereof. We also notice that the supplies were made against specific contracts and the certificate issued by the Railways, that supply was against fixed-price under the contract and did not provide for an element ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
