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TMI Blog2002 (11) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... ,727/- on 16-11-98 by encashing the Bank Guarantees. The appellants in appeal obtained an order from CEGAT No. 1393/99 dated 3-6-99, which allowed abatements on account of trade discount, interest on credit sales and advertisement charges to be deductible from the assessable value. In pursuance of the same, the appellant sought to finalise the assessments on the basis of Supreme Court's judgment dated 19-7-1995 and Assistant Commissioner Order No. 86/1997, dated 11-6-1997 as modified by CEGAT Order No. 1393/99, dated 3-6-1999 and preferred a refund claim for the differential duty and interest paid by them. 2. They were issued a Show Cause Notice dated 21-1-2000 by the Assistant Commissioner asking them to show cause why the refund claim made by them should not be rejected on the following grounds :- (i) The assessees have failed to submit the documentary evidence to show that the incidence of duty has not been passed on by the applicant to any other person. (ii) The assessees have failed to submit the proper documentary evidence i.e. Gate Passes/Invoices, or any other document indicating prominently the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, the appellants filed a work-sheet of differential duty along with a letter, claiming that they are eligible for refund of certain amount on refinalisation of assessments. The Assistant Commissioner vide letter V/Misc/30/4/99-R dated 26-10-99, has asked the appellants to file the refund claim in proper form along with the relevant documents, without resorting to refinalisation of assessments. So far, it appears that the adjudicating authority has not refinalised the assessments after the CEGAT's order. Hence, the proper course of action for the adjudicating authority would be to refinalise the assessments by taking into consideration the decision of the CEGAT to give abatement of Trade discount, interest on credit sales and advertisement charges. After arriving at the duty excess paid on account of the refinalisation, the adjudicating authority shall take up the refund claim already filed into consideration in terms of the provisions of Section 11B of the Central Excise Act, 1944 and pass appropriate orders in accordance with law. (ii) The adjudicating authority has held that the amounts which were paid without following the procedure lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11D of the Central Excise Act, 1944. (iv) The appellant's further plea that the unjust enrichment under Section 11B is not applicable in their case as they have paid the amounts from 1985 to 1999 over a period of time much after the clearances of cigarettes is not acceptable. What is to be examined is whether these amounts, for which the refund claim has been lodged by them, were recovered by them from the buyers of cigarettes in any manner at the material time of clearance of cigarettes and then retained by them and thereafter paid to the Department subsequently in piece meal from time to time. If that be so, then the refund claim will definitely be hit by the unjust enrichment clause. As per provisions of Section 11B of the Central Excise Act, 1944 read with Section 12B ibid, the onus is on the appellants to prove that duty burden has been borne by them only and has not been passed on to the buyer of the goods in any manner whatsoever. The appellants are directed to furnish all the relevant records/documents in this regard to the Deputy Commissioner, who will verify the same and thereafter pass appropriate orders in accordance with law after hearing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e calculated our liability to the extent of Rs. 1,30,83,974/- and we had issued a cheque No. 269683 dated 9-2-1994 for Rs. 1,30,83,974/- drawn in favour of CAO, Central Excise, Hyderabad. (3) 6,40,00,000 Following the Interim Order dated 12-7-1985 of the Supreme Court, the Collector Central Excise, Hyderabad, convened a meeting on 11th and 12th December 1986, with the Chairman of the Company and advised the Company to make on account payments as detailed in his letter C. No. 1/10/20/85-PME (PF) dated 7-10-1986, copy enclosed. The department wanted to collect the duty on account of disallowance of deductions such as selling profits etc., even though CA 2644/79 was still pending final adjudication. In response to the above, the Chairman of the Company vide his letter dated 12-12-1986 informed the Collector of Central Excise that the Company shall make the payments without prejudice to the company's rights and contentions in law in the matters pending before Courts. In compliance therewith, these payments amounting to Rs. 6.40 crores were made during the period from 31-8-86 to 11-3-87 as detailed in Appendix A to our Refund Claim. Each payment was made along with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties are not as per the provisions of Section 11B(2) which provides that "if an application for refund of excise duty is determined the amount should be credited to the fund i.e., the Welfare Fund except in the cases as mentioned from a - f proviso thereunder wherein they could be paid to the appellants". Therefore, it has first to be determined whether amount is required to be refunded, if so, to whom it has to be paid i.e. to the Welfare Fund or the applicant. Merely rejecting the refund application as arrived at by the ld. Deputy Commissioner on the grounds of 'unjust enrichment' cannot be sustained as the same is not as provided for under Section 11B (2). When the Original order of the Deputy Commissioner cannot be sustained, as it has not been made in compliance with the provisions of the Section 11B (2), the order of the Commissioner (Appeals) also cannot be upheld. (c) We find that the Commissioner has remanded the matter back to the original authority for verification of the relevant records/ documents. Therefore, we would order that this matter be remanded to the original authority, to re-determine the refund claims made, based on the facts of paym ..... X X X X Extracts X X X X X X X X Extracts X X X X
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