9911796707
TMI Blog2005 (10) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... y had been paid by the appellants under protest. The Commissioner (Appeals) has noted that the proviso to Rule 233B of the erstwhile Central Excise Rules are only directory in nature and not mandatory and therefore, the duty paid under protest cannot be held to be time barred. The Revenue is aggrieved with this portion of the order. The appellant's contention is that the refund claim is not hit by the provisions of unjust enrichment. They contended that the sales made to the various customers are in terms of the contracts. It stipulates the price by which the product is to be sold to the particular customer. The contract clearly states that the price fixed in the contract are inclusive of excise duty/tax; and that no additional amounts woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .)] (iv) Panihati Rubber Ltd. v. CCE, Calcutta-II [2001 (127) E.L.T. 742 (Tri.-Cal.)] The learned Counsel submitted that the duty had been paid under protest and merely because the procedure prescribed by the Rule 233B has not been followed that itself is not a ground to hold that the demand is barred by time. In this regard, he relied on the Tribunal judgment rendered in the case of Paras Laminates Ltd. v. CCE, New Delhi [2000 (123) E.L.T. 651 (Tri.)] 3. The learned SDR contended that the procedure prescribed in terms of 233B was required to be followed but the same has not been done. He submitted that the demands are hit by time bar. Further he reiterated the grounds in their appeal. 4. On a careful consideration of the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstance has held that duty burden has not been passed on to the customers. This ratio has been followed in other citations noted supra. All the cited judgments clearly hold that there is no change in the price structure and after increase it cannot be said that incidence of duty has been passed on to the customers. In view of these judgments and duty having been paid under protest, the amounts cannot be directed to be credited to the Consumer Welfare Fund. The appellants are eligible for refund and the same shall be paid to the appellants. The assessee's appeal is allowed with consequential relief.
(Operative portion of the order has been pronounced in the Court on completion of hearing)
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