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TMI Blog2016 (11) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... cturing unit and the man is ruined - thus the cost of ₹ 50,000/- is imposed on the Central Government in the appeal. Appeal dismissed - decided against Revenue. - D.B. Excise Reference No. 3 of 2002 and D.B. Excise Appeal No. 4 of 2009 - - - Dated:- 16-11-2016 - K.S. Jhaveri and Mahendra Maheshwari, JJ. Shri Kanishk Gupta, for the Petitioner. Shri Sameer Jain, for the Respondent. ORDER [Order per : K.S. Jhaveri, J.] . - Both these matters involve common questions of law and facts, hence are decided by this common order. 2. The matters have a chequred history and the subject matter relates to assessment years, 1986-1990. 3. The brief facts of the case are that M/s. Jaipur Syntex Ltd., Behror was engaged in manufacturing of blended yarn made from viscose fibre and non-cellulosic soft waste (hereinafter referred to as NCSW). The department held that the yarn so made is classifiable under Chapter Heading 55.06 instead of Chapter Heading 55.05 as claimed by the party. The blended yarn classifiable under Chapter Heading 55.06 was chargeable to excise duty on higher rate in comparison to the blended yarn of Chapter Heading 55.05. 4. The assessee pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims are protected against time-bar. The assessee also claimed that they have not passed on the burden of excess duty paid by them to the buyers and that they have shown the said amount as receivable amount in their balance sheets. 8. First two refund claims were rejected by the Assistant Collector vide his order No. 371, dated 13-1-1990. Party filed appeal before the Collector (Appeals) who held that the party was eligible to refunds on merits but has to be decided in the light of provisions of the Central Excise and Customs Laws (Amendment) Act, 1991, dated 17-12-1991 bringing in provisions relating to unjust enrichment. On appeal permitting the continuation of the proceedings before the original authority, as directed by the Collector (Appeals). 9. The jurisdictional Assistant Commissioner, as adjudicating authority took up all the five claims including the two claims covered by de novo proceedings, as per order of the Collector (Appeals), for disposal. He, prima facie, found that the blended yarn made from regular fibre with viscose was being sold at the same price as blended yarn made from NCSW and viscose; that the receivable amount shown in the balance sheets could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Letter from the Superintendent, Central Excise, Range-I, Bhiwadi dated 26-11-1990, addressed to the Assistant Collector, Central Excise, Jaipur. (k) Affidavit of Shri P.N. Tailor, their General Manager (Works) dated 24-8-1998. (l) Representative copies of challan submitted to Department together with RT-12 returns. (m) Two letters from M/s. S. Kumar Enterprises (Synfab) Limited and M/s. S. Kumar Limited both dated 22-4-1993, clarifying that they have purchased larger quantities of NCSW/viscose yarn from them during the period under reference. 11. After examining the reply and after hearing the party, he held that the claim is admissible on merits; that in view of the protest the claims are not time-barred. However, he held that the assessee failed to prove that the duty incidence has not been passed on to the buyers by submitting gate passes as evidence. Accordingly, the Assistant Commissioner, vide O-I-O No. 132/95 (Refd.) dated 4-12-1995, sanctioned the refund claims but credited the same to the Consumer Welfare Fund on the ground of unjust enrichment. 12. The issue referred by the Tribunal reads as under : Whether in the facts and circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal. He, prima facie, found that the blended yarn made from regular fibre with viscose was being sold at the same price as blended yarn made from NCSW and viscose; that the receivable amount shown in the balance sheets could not be treated as related to the excess duty paid by the assessee on the yarn made from NCSW/viscose as there was no separate note in the balance sheets to the effect that the amount included in the Excise duty under profit and loss account only covered the lower rate of duty on blended yarn made from NCSW/viscose; and that evidences like gate passes have not been filed by the assessee so as to ascertain as to whether burden of duty has been passed on to the buyers or not. Accordingly, he issued five show cause notices all dated 30-9-1994 to show cause as to why the said refund claims should not be credited to the Consumer Welfare Fund, as the assessee had failed to establish that the excess duty burden was not passed on to the buyers. 18. He further contended that order was carried in appeal and the Tribunal also has held in favour of assessee which reads as under : We are of the view that the Tribunal having recorded a clear finding in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter filed an application claiming refund of the customs duty paid by it. The authority-in-original rejected the claim on the ground that the assessee had passed on the burden of the customs duty to its customers and refund of the customs duty would amount to unjust enrichment as provided under Sections 27, 28(C) and (D) of the Act. Assessee challenged the order-in-original before the Commissioner of Customs (Appeals). Commissioner of Customs (Appeals) upheld the order-in-original. Assessee thereafter filed appeal before the Tribunal. Initially, there was a difference of opinion between the Member (Technical) and Member (Judicial) regarding the refund of the customs duty. It was held by the Member (Technical) that the incidence of duty has not been passed on to the customers and therefore the assessee is eligible to claim the refund of customs duty whereas Member (Judicial) held it otherwise. The matter was referred to a third Member who agreed with the Member (Technical) holding that the incidence of duty had not been passed on to the customers and therefore the assessee is eligible to refund of the customs duty. It is an admitted position that the burden to prove that the customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 24-10-2001 and 16-4-2002 have recorded a categoric finding of fact that the incidence of duty could not be transferred to the buyer after the date of clearance as the duty had been paid on a subsequent date. This has been held to be sufficient to replace the presumption raised under Section 12B of the Act. Therefore, we find that no question of law warranting admission of this matter would arise and accordingly the application filed by the Revenue is dismissed. 24. He has further relied on Commissioner of C. Ex. Cus. v. Manisha Pharmoplast Pvt. Ltd., 2008 (222) E.L.T. 511 (Guj.) wherein it has been observed as under : As can be seen from the impugned order of the Tribunal it has confirmed findings of fact recorded by the Commissioner (Appeals) after appreciation of the evidence on record. The appellant, in the memo of appeal as well as at the time of hearing has emphasised on the singular fact that once the invoice reflected the total amount of duty payable it was for the assessee to show that it had not recovered the disputed amount from its customer. Both the Commissioner (Appeals) and the Tribunal have found from the facts on record that the presumption under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellate Collector or the Appellate Tribunal as the case may be. In the light of these amended provisions, there can be no justification for any Assistant Collector or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its correctness. He has to follow the order of the higher appellate authority. This may instantly cause some prejudice to the Revenue but the remedy is also in the hands of the same officer. He has only to bring the matter to the notice of the Board or the Collector so as to enable appropriate proceedings being taken under Section 35E(1) or (2) to keep the interests of the department alive. If the officer s view is the correct one, it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail. 8. We have dealt with this aspect at some length, be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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