9911796707
TMI Blog1984 (11) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... d whether or not containing vegetable or fruit juice or fruit. Rate of duty 10% ad valorem". 2. With effect from 17th March, 1972 the rate of duty was raised from 10% ad valorem to 20% ad valorem. The same day the Union of India issued a notification exempting all types of aerated waters except those in the manufacture of which "blended flavouring concentrates" in any form were used, from the excise duty in excess of 10% ad valorem as it originally stood. The effect of the notification was that from l7th March, 1972 aerated waters in the manufacture of which blended flavouring concentrates in any form were used were liable for excise duty at 20% ad valorem while other aerated waters continued to be liable for excise duty at 10% ad valor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s derived his conclusions. At the same time, this much is clear from the report that 'blending' is involved in both the cases. It is, however, not clear whether this blending involved only essences. It is also clear that both the products have peculiar flavours of their own. But it is not clear as to the presence of which substances exactly they owe this flavour and as to whether the substances to which they owe this flavour are in the form of concentrates. In other words, from the Chemical Examiner's report taken as a whole it is not clear whether blended flavouring concentrates were present in the products in question or not." The matter is still pending and there has been no final adjudication. 4. Sometime in the year 1979 the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no application to the case in hand. In the said case it was an admitted fact that only essence was used by the company therein in the manufacture of their aerated waters. The contention of the respondent was that essences and blended flavouring concentrates are not two different and distinct items but are synonymous with each other. Mr. Justice Rege after dealing with the contentions at length came to the conclusion that the 'essences' and 'concentrates' are two different and distinct items. In M/s. Chennai Bottling Co., Madras, 1981 E.L.T. 315 (GOI) also it was held : "The synthetic essences are not synonymous with blended flavouring concentrates." As already stated there is no finding of any competent authority in the case in hand tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed to recover the excise duty (assuming that it was wrongly paid) and thereby unjustly enrich itself. More so, when the claim has been made after a great delay. A Division Bench of this Court in similar circumstances dismissed in limine a writ petition filed by P.N. Monga Bottling v. Union of India, Civil Writ No. .028 of 1983, decided on 23rd August, 1984. Also see : (I) Union of India v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. and others, 1984 (17) E.L.T. page 246, (2) Hyderabad Asbestos Cement Products Ltd. and another v. Union of India and others, 1980 E.L.T. (Del.) 735 and (3) Madras Aluminium Co. Ltd. and another v. Union of India, 1981 E.L.T. 478. 9. Goods were classified under Item 1-D(i) of the Central Excise Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that the limitation of six months shall not apply where any duty has been paid under protest. Explanation. - Where any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall \ be computed from the date on which the duty is adjusted after final determination of the value or the rate of duty, as the case may be." The petitioner claimed the refund, as earlier stated, sometime in 1979. The claim for refund was clearly barred by time. 11. There is yet another legal obstacle in the way of the petitioner. The claim made by the petitioner company for the refund was rejected by the Assistant Collector on 12th February, 1980. The remedy of appeal was available to the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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