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TMI Blog2018 (3) TMI 1485X X X X Extracts X X X X X X X X Extracts X X X X ..... t Shri Sanjay Hasija, Superintendent (AR) - for Respondent ORDER M/s. Indian Hume Pipe Co Ltd is in appeal against order-in-appeal NO.PVR/118/NGP/2012 dated 15 th October 2012 of Commissioner of Central Excise Customs (Appeals), Nagpur which has upheld the rejection of claim for refund of ₹ 2,49,965/-. Proceedings had been initiated against the appellant for recovery of differential duty arising from disallowance of certain deductions claimed in the 'price lists' in 1991 and, consequent upon appeal before the first appellate authority, the declaration in the pricelist was approved leading to claim for refund of the differential duty that had been paid. 2, The claim was rejected initially on the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asserts that the directions of the Tribunal had not been complied with by the appellant leading to the rejection of the appeal. Furthermore, he relies upon the decision of the Hon'ble Supreme Court in Union of India v. Solar Pesticides Pvt Ltd [2000 (116) ELT 401 (SC)]. 5. It is pertinent to note here that the first appellate authority, on the last two occasions, had not considered it necessary to transfer the refund amount to the Fund which is an essential consequence of withholding the release by invoking the principle of unjust enrichment. From the records, it is seen that the differential duty has been collected by adding supervision charges, cost of 'bought out' items and sales-tax. 6. The dispute on the different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of the Hon'ble High Court of Punjab Haryana in Commissioner of Central Excise, Chandigarh v. Modi Oil General Mills [2007 (210) ELT 342 (P H)] which held that :- '2. The assessee filed an appeal before the Commissioner (Appeals) against the Order-in-Original, who accepted the appeal by holding that the assessee had deposited ₹ 10,87,824/- on 25-3-1998 in respect of the period 1997-98 after the goods had been cleared and, therefore, it could not be established that the amount of duty had passed on to the buyer. According to the Commissioner (Appeals) the duty liability amounting to ₹ 10,87,824/- determined by the Commissioner deposited by the assessee on 25-3-1998 was paid by the assessee from its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material period. 7. We find in the instance [?] case that the amount of ₹ 10,87,824/- for the period September, 1997 to February, 1998 was deposited on 25-3-98. We agree with the findings of the learned Commissioner that the amount of ₹ 10,87,824/- deposited on 25-3-98 on the demand of Assistant Commissioner was paid from their own pocket by the respondents herein. We do not find any legal or factual infirmity in this finding. In respect of the amount of ₹ 1,36,870/- deposited on 31-3-98 for the month of March 1998 the denial of refund to the respondents herein is not challenged as the goods were cleared during the month of deposit. In this view of the matter we do not see any reason 10 disagree with the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue took the matter to the Supreme Court and the Supreme Court in Commissioner of Central Excise v. Panihati Rubber Ltd reported in 2006 (202) ELT 41 (SC) affirmed the decision of the Tribunal and the High Court in the matter. 10. In the factual matrix of the present dispute, the goods were cleared before the differential duty was crystallized in adjudication proceedings and the goods had been cleared on challans reflecting the declared price and declared duty liability. The burden of differential duty would not have been passed on. 11. For the above reasons, the rejection of refund claim by the first appellate authority is not tenable. Appeal is allowed with consequential relief. (Pronounced in Court on 09/03/2018) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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