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TMI Blog2023 (12) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... LLECTOR OF CENTRAL EXCISE [ 1989 (1) TMI 128 - SUPREME COURT] , that classification list came to be filed for the first time in November 1975. At the same time, in the same judgment, it has been noted that the classification list had been approved by the competent authority in December 1977 before which, in a separate dispute, the first appellate authority in order of June 1974 had held the goods not liable to excise duty. Notwithstanding the lapse of time since the dispute on excisability was taken up and concluded and its appearance before the the Tribunal for the third time, a fresh decision cannot be directed after taking the submission on facts, as well as certificate of the Chartered Accountant, into account - matter remanded back to the first appellate authority on the terms and conditions directed by the Tribunal formerly and subject to the law as judicially determined. - HON BLE MR C J MATHEW, MEMBER (TECHNICAL) And HON BLE MR AJAY SHARMA, MEMBER (JUDICIAL) Shri Mahesh Raichandani, Advocate for the appellant Shri Xavier R Mascarenhas, Superintendent (AR) for the respondent ORDER PER : C J MATHEW This appeal of M/s Bhor Industries Ltd is be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai Zone I with the terms of remand which required the first appellate authority to examine the certificate issued by Chartered Accountant as also the factum of no sale having occurred for enquiring into the shifting of the incidence of duty in particular. 3. Considering the nature of the appeal before us, it would be appropriate to examine the background of the issue itself. It all started with the filing of claim for refund, of ₹ 17,77,763.93 that was claimed to have been discharged as duties of central excise during the period from 1st March 1970 to 31st December 1975 and ₹ 60,04,411.01 for the period from 1st January 1980 to 31st December 1982, following the resolution of dispute on excisability of PVC films/sheets deployed captively by the appellant which attained finality in order of the Hon ble Supreme Court in Bhor Industries Ltd v. Collector of Central Excise [1989 (40) ELT 280 (SC)]. Show cause notices came to be issued to the appellant proposing rejection of the said refund applications and the confirmation thereto by the Assistant Collector of Central Excise, upon challenge before the first appellate authority, came to be remanded to the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and held that the Commissioner (Appeals) without considering any evidence as regards the aspect of unjust enrichment passed the order in favour of the Revenue. It appears from the assessment order that the assessee had produced materials showing the price of the different types of sacks party-wise for two periods, one from November 20, 1986 to March 31, 1987 and the other from April 1, 1987 to September 15, 1987 indicating that the assessee did not add any amount even up to September 15, 1987. In other words, the price of the articles remained the same even after the period in question pointing out that nothing was added to the price although the assessee was asked to pay duty for the period which they initially paid on demand. 8. We, therefore, find that the point now sought to be urged before us by Mr. Roychowdhury by taking aid of Section 12B of the Act on the basis of onus is even not tenable as sufficient materials were placed by the assessee in support of their claim that there was no unjust enrichment and those statements have not been found to be false or unreliable. 6. It was further pointed that the decision of the Hon ble High Court of Bombay in Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation order of failure to protest is not tenable. The appellant claims that protest had been filed with the department by mail, under certificate of posting ; that has not been denied. In this context, the finding of the first appellate authority that (7) Without prejudice, duty was required to be paid as; assessed by the proper offieer-in-~the -application in AR1 Form in respect of unit functioning under physical control or on the basis of Classification list approved by the proper officer. The question of protest would come when there is any difference between the claim of the assessee and that of the proper officer. In such case appellate remedy is available to the assessee. if the proper officer had acted against the claim of the assessee. If the assessee, does not exercise such appellate remedy then it is deemed that the assessee had accepted the contention of the proper officer even though he may or may agree with the contention of the proper officer. In such case payment of duty under protest does not arise. Merely stating that duty is paid under protest does not become or can be considered as duty is paid under protest. There has to be any ground for payment of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to pay duties for the period prior to December 1975. It was also necessary for the lower authorities to ascertain the discharge of duty liability insofar as the impugned goods are concerned for the period prior to filing of classification list which apparently appears to have been done for the first time in November 1975 and, that too, approved conditionally. 9. The first appellate authority appears to have decided the applicability of unjust enrichment on the basis of statutory presumption and the decision of the Tribunal in Jyoti Structures Ltd v. Commissioner of Customs Central Excise, Aurangabad 2003 (156) ELT 853 (Tri. - Mumbai)]. 10. Learned Authorised Representative had placed reliance upon the decision of the Hon ble Supreme Court in Sahakari Khand Udyog Mandal Ltd v. Commissioner of Central Excise Customs [2005 (181) ELT 328 (SC)] and in Union of India v. Solar Pesticide Pvt Ltd [2000 (116) ELT 401 (SC)] both of which have applied principles set out in the decision of the Hon ble Supreme Court in Mafatlal Industries Ltd v. Union of India [1997 (89) ELT 247 (SC)]. The Tribunal had, in its substantive remand, directed that certificate of Chartered Accounta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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