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TMI Blog2003 (9) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... iginally registered as a 100% export-oriented undertaking (EOU); that they made an application for de-bonding of the unit to the Development Commissioner on 26-4-94 and they were finally de-bonded as per letter dated 1-3-95; that the Commissioner of Central Excise under letter dated 27-6-95 addressed to the Assistant Commissioner directed that a total sum of Rs. 76,83,195/- was required to be paid by them to achieve the status of a complete de-bonded unit; that based on the said communication the Assistant Commissioner issued a certificate dated 10-7-95 to the effect that the unit stood de-bonded with effect from 9-7-95; that on their protest the actual date of de-bonding was declared to be 15-5-95 and not 9-7-95. 2.2 They paid the to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), dated 22-9-94 has not been complied with; that the Customs duty refund cannot be considered and granted under Section 11B of the Central Excise Act. The Assistant Commissioner has also held that the duty was paid on 6-7-95 and the claim has been filed on 18-3-96 which is beyond the period specified in Section 11B of the Act and as such claim is barred by limitation and the duty has not been paid under protest as there is no reference to duty paid under protest. 3.2 The Commissioner (Appeals) also under the Order-in-Appeal No. 357/2001, dated 15-5-2001, has rejected the appeal filed by the Appellants on the ground that the Assistant Commissioner cannot consider the refund claim filed under Section 11B of the Central Excise Act under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities and emphasized the fact that in the present matter the Appellants cannot claim refund of duty; that they have to either claim duty drawback or rebate of duty paid on the inputs used for packing the finished goods exported. He also mentioned that the protest filed by them under their letter dated 7-7-95 was on an entirely different ground i.e. the duty on packing material cannot be demanded as the same has been used in the production of goods which are included in the finished stock; that in the present matter the duty is being claimed as refund as goods had been exported and accordingly the refund claim is hit by time-limit specified in Section 11B of the Act. 6. We have considered the submissions of both the sides. The refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that during the period between 15-5-1995 and 9-7-95, they had manufactured goods and removed the same on payment of appropriate duty considering the date of debonding on 9-7-95; that once the debonding date is taken to be 15-5-95, no Central Excise duty is payable by them on the finished goods. The Assistant Commissioner, under Order-in-Original No. 10/Ref/98, dated 28-9-98 rejected the refund claim holding that the Appellants had not challenged the debonding Order and the duty had been paid according to the conditions of the debonding order. The Assistant Commissioner also found that the duty paid by them had been collected from their customers and as such the incidence of duty had not been borne by them. On appeal filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 4-1-95. The Assistant Commissioner, under Order-in-Original No. 7/Ref/98, dated 5-10-98, rejected the refund claim on the grounds that in the debonding order dated 27-6-1995, it was specifically mentioned that they had to discharge duty liability, inter alia, on packing material and they had not challenged the said debonding order. The Assistant Commissioner had also held that when packing material was used captively in the manufacture of final products, the duty paid is passed on to the buyer of the final product. The Commissioner (Appeals) also under, the Order-in-Appeal No. 292/2001, dated 24-4-2001, rejected their appeal upholding the findings of the Adjudicating Authority to the effect that having failed to appeal against the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.C.) wherein the Supreme Court has allowed the appeal filed by the Appellants against Tribunal's decision of rejecting their claim for refund of duty paid under protest. 11. Countering the arguments, the learned SDR, submitted that the Para 2 of debonding order made it very clear that all finished goods lying in stock as on date at the time of debonding were liable to appropriate duty and in case duty is not paid on the finished goods at the time of debonding the same were to be kept in bond and could be cleared on payment of appropriate duty and also could be exported under bond; that as the cost of packing material is included in the value of the finished goods, the incidence of duty has been passed on to others and bar of unjust e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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