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TMI Blog2004 (1) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... d the future clearance of the goods would be effected on the same terms as per Order-in-Appeal; that they deposited Rs. 1,18,15,643.62 paise with the Collector; that they subsequently deposited another Rs. 10 lakhs with Collector in pursuance of Supreme Court's Order dated 27-3-1992. 2.3 He also mentioned that the Supreme Court by Order dated 27-4-1993 set aside the Tribunal's Orders, holding that the soaps in question are household soaps classifiable under Tariff Item 15(1) of the Old Tariff; that they, therefore, sought return of the cash deposit amounting to Rs. 1,18,15,643 plus Rs. 10 lakhs as also cancellation of Bank guarantee; that the Assistant Collector issued a notice on 22-6-1993 to finalize the price lists for the period from 8-1-1988 to 1991-92; that the Assistant Collector in letter dated 25-6-1993 stated that unless the assessments are finalized, the claim chargeable to duty @ 5% in terms of Notification No. 70/79-C.E., dated 24-4-1979 on the ground that the soaps were "household and laundry soaps"; that the Assistant Collector modified the classification to Item 15(2) liable to duty @ 15%, under Order-in-Original No. 1/CL/82, dated 20-3-1982; that the Collector (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount has been correctly credited to the Consumer Welfare Fund since they had not produced evidence that the reduction in duty has been adjusted in the cost of raw materials in the cum-duty price. 3.2 The Commissioner (Appeals), under the impugned Order No. 40/2002, dated 25-1-2002, rejected their appeal holding that the amount deposited and Bank guarantee executed was towards excise duty and the Appellants had not proved that the incidence had not been passed on to the buyers. 4.1 The learned Counsel submitted that the Appellants had not deposited the duty but had only deposited certain amount in terms of the Hon'ble Supreme Court's Order long after the clearance of the goods, that in respect of such cases the question of passing on the duty incidence does not arise; that as per judgment in NELCO Ltd. [2002 (144) E.L.T. 56 (Bom.)] and Circular F. No. 275/37/2K/CX-8, dated 2-1-2002 as reported in 2002 (139) E.L.T. T38, deposits made during the pendency of the appeal have to be returned even without an application of refund. He relied upon the decision in the case of Dollar Company v. Government of India, 1986 (24) E.L.T. 245 (Mad.) wherein the Madras High Court has held that " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith reference to the excess available from reduced duty; that neither the Adjudicating Authority nor the Commissioner (Appeals) had considered this submission. Reliance has been placed on the decision in the case of CCE, Chandigarh v. Metro Tyres Ltd., 1995 (80) E.L.T. 410 (T). The Supreme Court has also rejected the appeal filed by the Department as reported in 2002 (143) E.L.T. A75 (S.C.). 5.1 Countering the arguments, Shri D.N. Chaudhary, learned SDR, submitted that the present Adjudication Order has been passed by the Deputy Commissioner in pursuance to the remand Order of the Tribunal dated 7-8-2000; that the Appellate Tribunal while remanding the matter vide Final Order No. 653/2000-A, dated 7-8-2000 had clearly held that the "deposit was nothing but deposit of duty due from them in respect of clearance of soap effected by them at the lower rate of duty."; that the matter then was remanded as the Tribunal found "force in the submissions of the learned Advocate for the Appellants that they would need sufficient time to produce necessary evidence of non-passing of the higher duty incidence to their customers."; that what is evident from the Remand Order is that the matter was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct clearly provides that application for refund shall be accompanied by such documentary or other evidence to establish that the incidence of duty of excise had not been passed to any other person. In this case the Appellants are seeking refund of amount which was deposited by them in pursuance of Order passed by the Supreme Court on their stay petition. This deposit was nothing but deposit of duty due from them in respect of clearances of soaps effected by them at the lower rate of duty. The Supreme Court in their own case Oswal Agro Mills Ltd., 1994 (70) E.L.T. 48 (S.C.) clearly held as under :- "The judgment in the case of Jain Spinners applies to a case where excise duty has been deposited in Court pursuant to an interim Order and has been withdrawn by excise authorities. In such a case, clearly, the assessee has to make an application for refund and to such a case, therefore, the provisions of Section 11B squarely applies." 7. The said Final Order, having been not appealed against by the Appellants, has become final and the settled issues cannot now be re-opened in remand proceedings. A perusal of our earlier Order dated 7-8-2000 reveals that the learned Advocate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... increase in the cost of raw material is only contention of the party and not any evidence to prove that the full incidence of duty has not been passed on to the buyers of such goods as required under Section 12B read with Section 11B of the Act. The Party had failed to furnish any data based on documents that can prove that the incidence of duty had not been passed on to any person. On the contrary there was no reduction in the cum-duty price of both makes of the Soap marketed by the party after they were granted relief of 10% duty of excise." 9. The Appellants have not controverted the fact that cum-duty price was not changed by them when the duty leviable on the impugned soap had been reduced to 5%. No material has been brought on record even now in appeal before us to show that the incidence of duty was not passed on to their customers. They have only mentioned about their letter dated 26-2-2001 without bringing on record any material to establish that there was an increase in raw material corresponding to decrease in the rate of duty of Excise. The appeal was remanded only with a view to enable them to produce necessary evidence of non-passing of the higher duty incidence to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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