TMI Blog1995 (12) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... Item 26AA as also the benefit of exemption notifications issued from time to time under the said Tariff Item to the effect that steel pipes and tubes other than seamless steel pipes and tubes were exempt from payment of duty if they were manufactured inter alia from sheets, plates, skelp etc. of 5 mm thickness and below. 1.2 In 1977, the department raised a dispute that the said goods fall under Tariff Item 68 of the erstwhile Central Excise Tariff and not under Tariff Item 26AA. This was contested by the Appellants herein. Finally, the Supreme Court on their appeal ruled that the goods in question are assessable to duty under Tariff Item 26AA. The assessment in question should be modified accordingly and the appellants would be entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of their refund. It has been held by the Assistant Collector that the benefit of the said notification does not apply to step-drawn poles or swaged poles, it applies only to pipes and tubes which products came into existence at the intermediate stage and the Appellants had already claimed the benefit of the said exemption notification for the said intermediate products. On the question of unjust enrichment the Assistant Collector s reasoning is somewhat tortuous. In this connection, the Appellants had urged before the Assistant Collector that the invoices made by the Appellants for the various clearance/sales made by them and sent to their customers did not show realisation of any element of duty. Therefore, no duty burden has been pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued to be allowed to the Appellant right up to sometime in 1977 under Tariff Item 26AA and under Notification 69/73. He also submits that the Assistant Collector now taking a different stand, in effect, goes against the stand of the predecessors and superior officers as also the stand of the Revenue before the Supreme Court. On this reasoning alone, he submits that the Assistant Collector s finding of non-admissibility of the benefit of Notification 69/73 is not tenable. Apart from that, he also relies on Tribunal s judgment in the case of Quality Steel Products Private Limited v. C.C.E. [1993 (65) E.L.T. 57 (Tribunal)] which holds that Tubular Steel Pipes continued to fall under sub-heading 7306.92 of the tariff pertaining to steel pipes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods fall under Tariff Item 26AA or Tariff Item 66. The question of benefit of any exemption notification was not before the Hon ble Court. That is why the Court stated in the last para of its judgment that the appellants will be entitled to the benefit of exemption, if any, extended at various points of time. The Court did not extend, submits the learned JDR definite benefit of any definite exemption notification. This question was left open according to him. On the question of applicability of the Notification 69/73, the learned JDR reiterated the findings of the said authority on the question of unjust enrichment . He submits that it was never stated before any of the authority below that the realistion made by the Appellants from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or not by a manufacture to his customers. If the invoices do not show any element of duty having been recovered from the customers, it has to be assumed in the absence of any evidence to the contrary produced by the department or admission by the party, that no burden of duty has been passed on to the customers. In the present case, we note that it is the Appellants themselves who have come forward and admitted that they have realised a certain amount from some of the customers, no evidence has been produced by the department that the Appellants have realised over and above that admitted amount. Therefore the admission of the Appellants for realisation of a certain amount cannot be held against them for the entire amount, in the absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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