TMI Blog2002 (9) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, who availed refund claim for Rs. 47,59,801/- being the differential duty on the basis of concessional rate of duty at 50% of effective rate in terms of Notification No. 108/81-C.E., dtd. 24-4-81 as amended. Since there was acute shortage of printing papers, the Government of India took a policy decision to offer incentives to attract investment in Paper Industry. It was decided that the new paper mills which commenced clearances of paper for the first time during the period from 1-4-79 to 31-3-84 were required to be paid only 50% of duty applicable on such paper. Accordingly, the Notification No. 108/81, dtd. 24-4-81 was issued. 3. It was the Department contention that five years period would be reckoned from the date of first cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund of the excess duty paid during the said period from 9-8-84 to 8-11-84. We do not have on record any material to show that the duty has been paid under protest. The claim has not been examined from the limitation point of view. Subject to the claim being within the period of limitation under Section 11B of the Act, the Assistant Collector is directed to grant refund consequent on this appeal being allowed by us on its merits. In pursuance of the Tribunal Order, the party has filed refund claim on 1-11-90 requesting the Assistant Collector of Central Excise, Warangal for implementation of the Order of the Tribunal. In the meanwhile, the Department had filed an appeal before the Supreme Court against the Tribunal order referred to abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as bound to refund the duty in pursuance of the Order of the Tribunal. Furthermore, it has reached finality since the order passed by the Tribunal has been upheld by the Supreme Court while dismissing the appeal filed by Revenue. He said that the Tribunal had allowed the appeal as early as on 12-9-90 and a formal refund application was filed on 1-11-90. Amendment to Section 11B came into effect only on 20-9-1991. In such cases, the question of unjust enrichment will not apply. He said that precisely, this was answered by the Supreme Court in Para 99(xi) of the decision of Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.)]. The relevant subject Para is extracted as under : 99(xi)-Section 11B applies to all pending pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads as under : An invoice which shows cum duty price does not make the point - whether or not duty was passed on to the consumer - clear. The fact that prices did not undergo a change even when the appellants paid duty at high rate does not merit the presumption raised against the appellant in terms of Section 12B. He said that it is contrary to the view taken by the Tribunal in the case of C.C.E. v. Metro Tyres Ltd. reported in 1996 (82) E.L.T. 95 (T). In that case, the Tribunal held that the burden to prove that the incidence of duty was passed on to the customers was discharged by the assessee when asscssee s invoices during the material period were showing a composite price and duty not indicated separately, as such the refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill not come in their way of getting the refund of the duty. We, therefore, hold that the appellants are entitled to get the refund of the duty amounting to Rs. 1,40,113.06........... 9. Relying upon the Para 95 as well as Para 278 of the decision of the Supreme Court in the case of Mafatlal Industries Ltd., (supra), Smt. Radha Arun, SDR for Revenue said that proceedings with reference to refund claim were pending before the Authorities below inasmuch as refund claim has not reached finality. The Authorities below were empowered to examine the issue with reference to the unjust enrichment even after allowing the appeal by the Tribunal. She also justified the action of the Authorities below in rejecting the refund claim since sufficient m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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