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2014 (3) TMI 922 - HC - Central ExciseDenial of refund claim - Unjust enrichment - Classification of goods 'Gulabari' - Classification under sub heading 3003.30 or under sub heading 3303.00 - Whether, under the facts and circumstances of the case the respondents have rebutted the statutory presumption under Section 12-B of the Act so as to be entitled for refund under Section 11-B of the Act - Held that:- differential excise duty paid by the appellant after the order dated 11.12.1997 related to the period 1st March, 1990 to 30 September, 1997. The classification of the product by the department, which imposed 18% excise duty, was challenged by the respondent and in pursuance to the demand as made by order dated 11.12.1997, the deposits were made by the respondent under protest after writing letter dated 18.12.1997 which has been brought on the record as Annexure-C.A.-3. In the letter dated 18.12.1997, it was clearly mentioned that the respondent does not agree with the classification of the product. It was further mentioned that the respondent is not changing the maximum retail price or wholesale price of the product. When the payment of differential excise duty was made by the respondent under protest and the M.R.P. has not been raised by the respondent, we fail to see that how the incidence of such duty shall be treated to have been passed on the buyer of such goods. The Assistant Commissioner Central Excise had referred to the letter dated 18.12.1997 sent by the respondent by which it was mentioned that respondent has not change maximum retail price or wholesale price and is paying the duty under protest. Amount of ₹ 10,94,263/- was deposited by the party on their own has not been shown in the balance sheet of relevant year 1997-98 in the schedule of loans and advances to be recovered for the department is not sustainable as the party had deposited this amount under protest as an advance payment of central excise duty pending enquiry and investigation and intimated this fact to the Additional Director General of DGAE, Central Excise New Delhi vide their letter dated 06.12.1997 and has also shown in their Balance Sheet of the company for whole of the group in the relevant year 1997-98 in the schedule of "OTHER CURRENT ASSETS". - Revenue had not disputed the facts of examination of balance sheet in their Grounds of Appeal. So, it is evident from the record that the Commissioner (Appeals) allowed the refund claim after examining the unjust enrichment. Hence, I do not find any reason to interfere the order of the Commissioner (Appeals) - Decided against Revenue.
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