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TMI Blog2001 (9) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... lly amounting to Rs. 25,39,456.30 on 26-9-83, 20-12-83, 14-6-84 and 17-8-84 on the grounds that they had paid countervailing duty on the components of the photocopying machines at the rates applicable under TI 33D at the time of their import. However, when the machines assembled from those components were cleared by them, the department took the view that the activity of assembly of the machines amounted to manufacture and the excise duty was leviable on the assembled machines under the same tariff item. Accordingly, they paid the duty of excise. But since, the CVD on the components/parts had once been paid, they held the view that no further duty of excise was liable to be paid on their assembly, as no manufacturing activity was involved. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Advocates for the appellants and Shri Mewa Singh, SDR for the respondents. Shri A.R. Madhavrao, Advocate for the appellants submitted that the refund in this case is admissible to the appellants inasmuch as the merits of the same is upheld even up to the level of the Apex Court. But, it is, stated that the amount of refund is not given to them and is credited to the Consumer Welfare Fund on the ground of unjust enrichment which is not tenable for two reasons. Firstly - it is argued - that the matter had already been concluded in favour of the party when the Hon'ble Supreme Court dismissed the Revenue's appeal on 12-8-96. On 15-10-96 when they approached the department, instead of giving them the amount of refund, they were issued a show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it again to duty under the same Central Excise Tariff Item when the assessee cleared machines in assembled form as no manufacture had taken place. In this view of the matter, the appeal of the assessee against subjecting the imported goods to CVD at the rates under Tariff Item 33D was rejected and appeal of the Revenue for subjecting the same goods to Central Excise duty under the same Tariff item was also rejected. The Revenue filed an appeal against this order before the Supreme Court which also stood dismissed. The ld. SDR submits that at no stage of these proceedings, the refund claim of the appellants was decided on the anvil of the principle of unjust enrichment and therefore question of res judicata would not arise. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified statutory authority, viz., the Asstt. Collector, Excise to consider the said question. It cannot be disputed that the amount which was deposited by the respondents in the court and was withdrawn by the appellant was towards the duty which was assessed by the Asstt. Collector, Excise. As pointed out earlier, when the amended provisions of the Act came into force on 20-9-1991, the respondents' application for refund filed on 31-5-1991 was pending before the Asstt. Collector and, therefore, as provided in the Act, the amended provisions were applicable to the said application. Even if we disregard the said fact, on the ground, as urged vehemently on behalf of the respondents, that independently of the said application they were enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y even directed the respondents to pay back over Rs. 2.33 crores, the amount which they had realised from their buyers and to the State in the following terms : So"5. far as Civil Appeal No. 960 of 1986 (Barmalt) is concerned, we direct - in view of the admitted fact that it has passed on the burden of duty to its purchasers - that Barmalt should refund to the State the amount received by them by way of refund (pursuant to the impugned judgment of the Delhi High Court) except a sum of Rupees eight lakhs. In view of the fact that H.M.M. Limited is now before us and it has admittedly received the said sum of Rupees eight lakhs from Barmalt, the H.M.M. Limited is directed to reverse the credit taken by it to the extent of Rs. 8,00,000/- (Rup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department has been realised from the buyers as it happened to be a leasing company. As already stated above, in view of the sale invoice issued to the buyers, it is clear that the full amount of excise duty paid to the department has been realised from the buyer and therefore, this amount is not liable to be refunded to the appellants." 12.It is well settled that invoice is the best evidence regarding passing of burden of duty as envisaged under Section 12A and that is why it has been stipulated that it should be mentioned in the sale invoice as to what part of price, excise duty in respect of such goods is going to confirm. Since in this case, it is not disputed that the excise duty element which is paid to the department is reflected i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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