9911796707
Advanced Search 
TMI Blog2003 (6) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... s 1. 26-8-86 Show cause notice is issued on the appellants filing classification lists, claiming classification of their product under chapter sub-heading 3206.19 of the Central Excise Tariff Act, 1985 proposing to reclassify under chapter sub-heading 3402.90 of Central Excise Tariff Act, 1985. 2. 29-10-86 Assistant Commissioner passes Order-in-Original dropping the proceedings and approving the classification as claimed by the Appellants. 3. 30-6-87 On an appeal filed by the department, the Collector of Central Excise (Appeals), passes Order-in-Appeal allowing the appeal of the department. 4. The Appellants file appeal to the Tribunal. 5. 7-8-87 The Appellants file classification list classifying their product under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submission along with an affidavit and Chartered Accountant Certificate that the duty burden has not been passed on; that the composite price shown in the sale invoice has remained the same both before and during the period in question. 16. 28-1-97 Assistant Commissioner passes order rejecting the refund claim. 17. 24-4-97 Appellants file appeal to the Commissioner (Appeals) 18. 7-4-99 Further written submissions are filed wherein it is inter alia submitted that assessments were done on a provisional basis. 19. 14-5-99 Commissioner (Appeals) passes order-in-appeal rejecting the refund claim. 2. From the order, it is found that the Commissioner has upheld the order of the lower authority ordering the refund of Rs. 2,20,23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to the limitation of time imposed by the section. This is clear by the fact that Hon'ble Supreme Court has specifically included and mentioned Section 11A along with Section 11B (at para 95). The Hon'ble Supreme Court has also added that where a separate refund claim is filed (as in this case) after decision under Rule 9B(5), it would also be governed by Section 11B. The bar of unjust enrichment is overriding and is applicable to refund arising out of all assessment orders, appellate orders, court judgments, decrees and orders and legal provisions. The appellants vehemently argue that the incidence of duty had not been passed on. In this regard, they rely on the Hon'ble Tribunal's decision in the case of Metro Tyres Ltd. and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer nor does it follow therefrom that the manufacturer is absorbing the duty himself. This finding of the Hon'ble Supreme Court is squarely applicable to the case at hand. The AC has specifically mentioned at page 5 of the OIO, "the depot invoices shows that they are not collecting the CED separately and that the prices are inclusive of CED". In view of Hon'ble Supreme Court's finding, that if the invoice does not show the duty element separately it does not mean that the manufacturer is not passing on the incidence of duty to the customer nor does it follow therefrom that the manufacturer is absorbing the duty himself, it should necessarily be held that the incidence of duty has been passed on to the customer. Consequently, granting of ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces effected during the pendency of these proceedings and the pending classification lists, as filed by the appellants with the Department from 14-8-87 to 5-10-94. When the classification lists were approved by the Department, as per the contentions made by the appellants, refunds on the clearances were claimed. These clearances were submitted by the learned Advocate for the appellants to be under provisional assessment, therefore, the benefit of para 95 of the Mafatlal Industries (supra) case [1997 (89) E.L.T. 247 (S.C.)] was required to be granted to them, as held by a catena of decisions cited by him. It was also submitted that the case of Metro Tyres and its pendency in appeal in the Supreme Court as reported in [1996 (84) E.L.T. A160] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be adjusted against the duty assessed by the proper officer under sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current within three months from the date of receipt of copy of the return from the proper officer and where such duty is less, the assessee shall take credit in the account-current for the excess on receipt of the assessment order in the copy of the return duly countersigned by a Superintendent of Central Excise". (underlining supplied) A perusal of this rule indicates, that it mandates 'the assessee shall take credit in the account-current for the excess on receipt of the assessment order, the copy ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
