9911796707
TMI Blog2003 (6) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ification 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 chapter sub-heading 3402.90 in terms of the order of the Collector (Appeals) and to pay duty under protest. 6. 14-8-87 The Appellants reiterate their request and register their protest. 7. The Appellants thereafter effect clearances by paying duty at higher rate under protest. The gate passes and RT 12 returns are marked with endorsements 'under protest.' 8. 12-7-88 The department issues show cause notice proposing to reclassify the product under chapter sub-heading 3204.20 of Central Excise Tariff Act, 1985 and demand duty. 9. 3-8-89 The department issues show cause notice proposing to reclassify the product under chapter sub-heading 3204.20 of Central Excise Tariff Act, 1985 and demand duty for the period 1-1-89 to 31-7-89. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court has held that in cases of provisional assessments, any recoveries or refunds consequent upon the adjustment under Rule 9B(5) will not be governed by Section 11A or 11B. In this case, the AC has not credited the refund amount in terms of Section 11B alone but in terms of Section 12B also. As regards reliance placed on the decision of Hon'ble Tribunal in the case of Needle Industries [1998 (26) RLT 307], I find that the Hon'ble Single Member of Tribunal has not at all considered and examined the case with reference to the provisions of Sec.12B. It may be observed here that the provisions of S. 12B are independent of Section 11B. What has been mentioned by the Hon. Supreme Court and the Hon'ble Tribunal in the above cited cases is with 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturer 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 refund to the appellants would undoubtedly result in unjust enrichment of the appellants. Hence the findings of the AC is fully legal and correct in terms of the said findings of the Hon'ble Supreme Court which is rightly relied upon. It may be added that the appeal has been filed against the decision of Hon'ble Tribunal in the Metro Tyres case in the Hon'ble Supreme Court which has been admitted and is pending decision [1996 (84) E.L.T. A160]. Simply because the price has remained the same or not increased to the extent it cannot be concluded that the incidence of duty has not been passed. It is pertinent to mention that Section 11B does not stipulate that price should necessarily increase for application of doctrine of unjust enrichment. The appellants have also not substantiated nor proved with satisfactory evidence that the duty burden/incidence has not been passed on. Hence the order of the AC crediting the refund to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing provisional. The removals, during the said period under the provisions of Rule 173F, which at the relevant time were required to be assessed under Rule 173-I by the appropriate officer on the RT 12 returns, so filed by the assessee. Whether such assessments under Rule 173-I have been made or not is not forthcoming. (c) Rule 173-I(2) reads follows : "The duty determined and paid by the assessee under Rule 173F shall 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 of the return duly counte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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