TMI Blog2005 (1) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... e bar of unjust enrichment was not attracted. But such is not the position in the present case. Moreover, the law laid down in both those cases being contrary to the law pronounced by the Apex Court in Mafatlal Industries and CCE [ 1996 (12) TMI 50 - SUPREME COURT] , Mumbai v. Allied Photographics India Ltd.[ 2004 (3) TMI 63 - SUPREME COURT] referred, cannot be applied to the case of the appellants. Hence, we do not find any illegality in the impugned order and the same is upheld. The appeal of the appellants is dismissed. - S/Shri V.K. Agrawal, Member (T) and P.S. Bajaj, Member (J) [Order per : P.S. Bajaj, Member (J)]. - In this appeal which has been directed against the impugned order in appeal, the issue relates to the applicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and propounded the same under Tariff Item 68 and intimated the appellants that the exemption under the above said notification, was not available to them. The appellants thereafter started paying the duty under protest. The classification dispute was however, finally resolved by the Tribunal vide order dated 28-3-1990 [1990 (49) E.L.T. 147 (Tribunal)] in favour of the appellants and that order was also upheld by the Apex Court [1992 (59) E.L.T. A97 (S.C.)]. The appellants thereafter filed six refund claims for refund of duty in all of Rs. 64,51,359.31 P, for the period 1985-1986 to 1990-1991. The Revenue however, issued show cause notice to the appellants proposing the rejection of their refund claims being hit by principle of unjust enrich ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty is not separately shown in the invoice price, it does not follow that the manufacturer is not passing on the duty. Nor does it follow there-from that the manufacturer is absorbing the duty himself. The manner of preparing the invoice is not conclusive. While we cannot visualize all situations, the fact remains that, generally speaking, every manufacturer will sell his goods at something above the cost price plus duty. There may be a loss-making concern, but the loss occurs not because of the levy of the excise duty - which is uniformly levied on all manufacturers of similar goods - but for other reasons. No manufacturer can say with any reasonableness that he cannot survive in business unless he collects the duty from both ends." 7. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparately shown by them was only a formality and that it was not to be charged from the buyers. When they were paying the duty under protest, it is difficult to accept that they did not charge duty from their customers. They in fact indicated the duty separately in their invoices while clearing the goods only with an intention to make it known to their customers/buyers, the duty involved on the cleared goods and requiring them to pay the same. The affidavit of Shri K.C. Sharma, General Manager of M/s. Lloyds Industries, copy of which is at page 84 of the paper book, referred by the Counsel, does not in any manner prove that the incidence of duty was not passed on by the appellants at the time of sale of goods to that company. He has only de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty was borne by the assessee by reducing the profit margin and there was non-payment of duty by the customers. In the second case, the contract price was inclusive of duty and no duty was paid by the buyers. Keeping the facts and circumstances of these cases, it was observed by the Tribunal that the bar of unjust enrichment was not attracted. But such is not the position in the present case. Moreover, the law laid down in both those cases being contrary to the law pronounced by the Apex Court in Mafatlal Industries and CCE, Mumbai v. Allied Photographics India Ltd. (supra) referred to above, cannot be applied to the case of the appellants. 12. In the light of discussion made above, we do not find any illegality in the impugned order a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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