9911796707
TMI Blog1995 (1) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has prayed for quashing of the show cause notice and the impugned orders and has prayed that the order dated 19-8-1991 passed by the Collector (Appeals), Customs and Central Excise, Chandigarh be restored. He has also prayed for issue of a direction to respondent No. 2 to refund a sum of Rs. 46, 845.13 along with interest @ 18% per annum. 2.Petitioner is a private limited company engaged in the proce- ssing of man-made fabrics. These goods were classified under the Tariff Item No. 22(1)(b). The Central Excise Tariff Act came into force on 1-3-1986. On 21-12-1988, exemption notification was issued by the Government of India, Department of Central Excise in regard to the man-made fabrics falling under Heading No. 55.08 and which were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal, New Delhi. The Tribunal upheld the contention of the department that the notification granting exemption could not benefit the petitioner because the duty had already been paid by the petitioner. 4.In challenging the show cause notice and the orders passed by the Assistant Collector as well as the Tribunal, the petitioner has pleaded that the amendment made in the Tariff Heading was effective only from 13-5-1986, the date on which the Finance Bill, 1986 was made effective and therefore, it was not open to the departmental authorities to insist on recovery of the duty at the enhanced rate. The petitioner has pleaded that Finance Bill 1986 could not have been applied with retrospective effect and in fact that is also the view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dated 21-12-1988 and clarified that the additional duty of excise payable shall not be required to be paid in respect of such man-made fabrics, on which the said additional duty of excise was short levied during the period commencing on 28-2-1986 and ending with 12-5-1986. This exemption notification did give relief to the persons who had not paid additional duty after the coming into force of Finance Bill 1986 but there is nothing in the said notification to show that persons engaged in the manufacturing or processing of man-made fabrics became entitled to the refund of the duty already paid. Therefore, the claim of the petitioner that on the basis of notification dated 21-12-1988, it acquired a right to get refund of the excise duty pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's coffers. The theory of unjust enrichment has been propounded by the Supreme Court in large number of decided cases but in my opinion, reference to the cases of Union of India v. Jain Spinners Ltd. - 1992 (61) E.L.T. 321 = J.T. 1992 (5) Supreme Court 386 and Union of India v. I. T.C. Ltd., 1993 (67) E.L.T. 3 (SC) = J.T. 1993 (4) Supreme Court 250 would suffice for the purpose of deciding this case. In the case of Jain Spinners, the Supreme Court held that the respondents are not entitled to take advantage of the order passed by the High Court on 19-2-1986 unless they succeed in showing to the statutory authorities that they had not passed on the whole or any part of the duty in question to the others. In the second case, Supreme Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty to the buyers of such goods and despite the grant of that opportunity, it has failed to produce any such evidence or material and the affidavit filed by it falls completely short of the necessary averments, we would consider it futile to either remand the case to the Assistant Collector Excise or to grant an opportunity to the respondent to file a fresh application before the Assistant Collector Excise under Section 11B(1) and (2) of the Act to seek refund in the manner known to law by adducing such evidence as it required by the amended provisions of law. The failure of the respondent to produce the necessary evidence before us goes to show that the respondent has failed to rebut the presumption that it had not passed on the burde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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