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TMI Blog2004 (8) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... se Tariff Sub-heading No. 2502.20. They filed a refund claim for Rs. 34,57,044/- pursuant to order Nos. 240 and 241/94, dated 6-9-1994 of CEGAT, being the duty excess paid on the clearances made from 25-7-1991 to 18-9-1991. The refund claimed by the respondents was sanctioned, but the same was credited to the Consumer Welfare Fund for the reasons stated in the Adjudication Order No. 216/95, dated 3-11-1995 passed by the Assistant Commissioner, Central Excise, Division - III, Hyderabad. Aggrieved by this order, the respondents preferred an appeal before the Commissioner (Appeals), Hyderabad that they are entitled to the refund claim as they did not pass on the burden of excise duty paid by them. The Commissioner (Appeals), vide his Order-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents to their industrial customers during the relevant period is inclusive of the duty amount of Rs. 2,150/- BED (as against the lower rate of Rs. 900/- BED and Rs. 90/- SED for 10 tonnes of Cement) and the same cum-duty price has been charged to their other customers also during the relevant period, it is clear that the cum-duty price charged to their other customers is also inclusive of duty amount of Rs. 2,150/- BED + Rs. 215/- SED and not Rs. 900/- BED + Rs. 90/- SED for 10 tonnes of cement as claimed by the respondents. It goes to prove that the respondents have passed on the entire duty burden to their other customers also. As such, the endorsements made on the invoices issued during the relevant period that BED of Rs. 900/- and SE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 24/91, dated 25-7-1991, the rate of duty on cement was reduced. In view of this, the cum-duty price ought to have been reduced to the extent of reduced rate of duty. The fact that the cum-duty price of the cement remained the same before and after the relevant period shows that the entire duty burden has been passed on to the customers. 7. The Assistant Commissioner has relied on the decision of Metro Tyres Ltd. - 1995 (80) E.L.T. 410 (T) which is clearly distinguishable from the present case. In the case of Metro Tyres Ltd., the goods were completely exempted and thereafter made chargeable to duty at the relevant time. But in the present case, the goods were already dutiable and only the rate payable was reduced subsequently. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as they had shown in the balance sheet about the amounts to be received as 'claims receivable' under the head "loans and advances". It is his submission that the Assistant Commissioner had perused the documents and had also made a thorough study of pricing pattern adopted and also taken the price prevalent in the neighbouring units of the same size as that of the assessee and had also taken note of the fact that before the relevant period i.e. before 20th September, 1991, there was no requirement under law to show separately the duties and invoices. It is his submission that as per Section 12A which was inserted in the Statute only subsequently i.e. after 20th September, 2001, its provision cannot be applied for the refund of duty paid for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed on by the assessee and hence the Commissioner's Order holding that the duty is hit by provisions of unjust enrichment is correct. 5. The learned Counsel, in reply, relied on the ratio of the following judgments : (a) CCE, Chandigarh v. Metro Tyres Ltd. - 1995 (80) E.L.T. 410 (Tribunal) (b) CCE v. Chariot Cement Co. - 2003 (158) E.L.T. 521 (Tri. - Kolkata) (c) Tecil Chemicals Hydro Power Ltd. v. CCE - 2003 (151) E.L.T. 136 (Tri. - Del.) (d) Infar (India) Ltd. v. CC, New Delhi - 2002 (150) E.L.T. 411 (Tri. - Del.) (e) ITC Bhadrachalam Paperboards Ltd. v. CCE - 2002 (146) E.L.T. 582 (Tri. - Bang.) (f) Jaipur Syntex Ltd. v. CCE, Jaipur - 2002 (143) E.L.T. 605 (Tri. - Del.) (g) CCE v. Minerva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be credited in the Consumer Welfare Fund is a correct and just order. We find that the citations referred to by the Counsel is totally not applicable to the facts of this case. In the case of CCE v. Metro Tyres Ltd., the duty had been paid under protest and the sale price of the goods before sales and after the event remained the same, which is not the situation in the present case, as the invoice price has been collected by the assessee. In the case of CCE v. Chariot Cement Company, the assessee had shown that the average ex-factory price for the period prior, during and after the period in dispute remained almost constant. The situation is equally distinguishable in the present case. In the case of Tecil Chemicals Hydro Power Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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