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TMI Blog2018 (7) TMI 1714X X X X Extracts X X X X X X X X Extracts X X X X ..... charges but also on the cost of material and consequently the amount deposited by them were a differential amount required to be deposited against the duty liability and thus it was not a case of pure refund - appellant is therefore, entitled for refund of ₹ 9,42,015/- along with interest as prescribed under the Act. However, while granting the said interest, the interest for the period for which the entire amount was refunded to them in 1983, and 75% of which was recovered from them in 1990, needs to be adjusted. Appeal allowed in part. - E/1634/2009-DB - A/11554/2018 - Dated:- 27-7-2018 - Mr. Ramesh Nair, Member (Judicial) and Mr. Raju, Member (Technical) Shri P.M. Dave Aditya Tripathi, Advocates for the Appellant Shri Amit Mishra, Dy. Commissioner (AR) for the Respondent ORDER Per : Raju This appeal has been filed by M/s. Kwality Silk Mills against the appropriation of refunds sanctioned to them. 2. The brief facts of the case, as narrated by the ld. Counsel are as follows:- The refund pertains to September 1976 to February 1987. At the material time, the issue regarding liability of Central Excise duty on processing of fabrics was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 12,92,778/- lying with the Registrar of Hon'ble Gujarat High Court. The matter was agitated by the appellant before the Hon'ble High Court and the Hon'ble High Court vide order dated 03.05.1990 directed the excise authorities to re-assess the value of the processed fabrics and workout the amount refundable to the appellant. This order also directed that 75% of the amount secured by bank guarantee can be encashed by the Revenue. The Hon'ble High Court also directed that re-assessment be completed within three months from that date and to refund the excess amount within one month. Consequently, the appellant submitted the claim of ₹ 40,73,077/- for refund before the Revenue. Thereafter, the appellant have maintained and kept alive the 25% of the bank guarantee of ₹ 12,92,778/- lying with the Registrar of Hon'ble Gujarat High Court. After a protracted litigation, the matter was decided by reassessment by the Original Adjudicating Authority on the basis of best judgment method. The method of best judgment was adopted since the relevant record were destroyed and was not available for verification and assessment. On the basis of best judgment method, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjusted against the refund admissible to them by order of the Hon'ble Apex Court. He further argued that when duty is secured against the bank guarantee, the provisions of unjust-enrichment are not attracted. He relied on the following case laws:- (a) Saheli Synthetics Pvt. Limited vs. CC CE, Surat 2001 (99) ECR 47 (Tri.) (b) Oswal Agro Mills Limited vs. CCE, Ludhiana 1994 (70) ELT 48 (SC) (c) UOI vs. Grasim industries Limited 2005 (183) ELT 12 (Raj.) (d) CCE, Mumbai vs. Mafatlal Industries 20112 (274) ELT 404 (Tri. Mumbai) (e) CC, ICD, Tkd vs. CEGAT, New Delhi 2005 (179) ELT 394 (Del.) (f) CCE, Mumbai vs. Allied Photographics India Limited - 2004 (166) ELT 3 (SC) (g) Munch Food Products Limited vs. Commissioner 2012 (285) ELT 329 (Del.) 4. Ld. AR relied upon the impugned order. 5. We have gone through the rival submissions. The appellant had originally field a refund claim of ₹ 40,73,077/-. However, they are not disputing the amount calculated by the original adjudicating authority by adopting best judgment method. The original adjudicating authority quantified the amount of refund admissible as ₹ 12,92,778/-. The Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grasim Industries Ltd. v. CCE - 2001 (94) ECR 222 and in the case of CCE, Rajkot v. Jupiter Cement Industries Ltd. - 1997 (72) ECR 733. Similarly, in the case of UOI vs. Grasim Industries Limited 2005 (183) ELT 12 (Raj.) has been observed as follows:- 3 . We have heard Mr. Ravi Bhansali, learned counsel for the department and Mr. Rajendra Mehta, learned counsel for the assessee. In our opinion, no referable question of law arises from the order of the C.E.G.A.T. as the same has been decided by the Apex Court. It is held by the Apex Court in Oswal Agro Mills case (supra) that furnishing of a bank guarantee for all or part of the disputed excise duty pursuant to an order of the court is not equivalent to payment of excise duty. It is also held that Section 11B applies when an assessee claims refund of excise duty. A claim for refund is a claim for repayment. It presupposes that the amount of the excise duty has been paid over to the excise authorities. The amount of disputed tax or duty that is secured by a bank guarantee cannot, therefore, be held to be paid to the revenue. Therefore, the question of refund under Section 11B is not attracted. 4 . In these circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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