9911796707
TMI Blog2005 (11) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... brand Mosquito Coils. The refund claims arise as a result of classification dispute - the assessee claimed the product as insecticides classifiable under Tariff Item 68 of the schedule to Central Excise Tariff Act and eligible for exemption from duty under Notification No. 55/75 dated 1st March 1975 as amended and that from 1st March 1986 the product was classifiable under Chapter sub-heading 3808.10 and chargeable to NIL rate of duty. The classification dispute was settled by the Tribunal by its order No. 260/90-C dated 19th March 1990 accepting the contention of the assessee. The Tribunal's order was upheld by the Supreme Court on 28-2-94. Although the assessee had been filing the claims right from October 1980 to March 1994 as seen from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty of excise in relation to which the refund was claimed had been passed on by them to their customers. By order dated 12th October 1995, the Assistant Commissioner held that an amount of Rs. 4,50,00,604.31 (Rupees Four cores fifty lakhs six hundred four and paise thirty one only) was barred by limitation and that an amount of Rs. 58,41,439.95 (Rupees Fifty eight lakhs forty one thousand four hundred thirty nine and paise ninety five only) was inadmissible on merits, as this amount had been availed by the assessee as Modvat credit. Regarding the amount of Rs. 8,06,92,659.39 (Rupees Eight crores six lakhs ninety two thousand six hundred fifty nine and paise thirty nine only), he held that it was admissible on merits but directed it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund, it is noticed that the assessee had raised a plea that they had paid the duty under protest during the entire period in dispute. Even if it is accepted that for a certain period the duty was paid under protest, it will not protect the assessee against the bar of unjust enrichment in the light of the Apex Court decision in the case of Commissioner of Central Excise, Mumbai-III v. Allied Photographics India Limited - 2004 (166) E.L.T. 3 (S.C.). This aspect has been considered in detail by the Assistant Commissioner who has held that on 29th July 1982, the Assistant Commissioner had passed an order in the matter of classification dispute by deciding in favour of the assessee that their product was exempted from payment of duty and as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced by the above mentioned figures of little over Rs. 4.50 Crores (Rupees Four crores fifty lakhs only). He also held that this amount is hit by bar of unjust enrichment for the reason that assessees' records show that they had collected this duty from their customers. 5. As regards the period from 27-9-79 to 31-12-83, it was found that the assessee had increased the price of the product from Rs. 150/- to Rs. 180/-. The reason given for the price increase is that the pricing was done by the Managing Director himself in consultation with the Sales Manager and this has no fixed basis and is not dependent only on costs and profits but is more dependent on other factors like acceptance by customers of the price, competition with simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the incidence of duty was charged to the buyers. Therefore, throughout the entire period in dispute, it is seen that the assessee had been passing on duty burden to their customers and therefore, the claims for refund are hit by bar of unjust enrichment. Even for the period when the Doctrine of unjust enrichment had not been introduced statutorily, it is not open to the assessee to contend that bar cannot be used against them in the light of the recent judgment of the Apex Court in the case of Sahakahri Khand Udyog Mandal Limited v. Commissioner of Central Excise & Customs - 2005 (181) E.L.T. 328 (S.C.) wherein the Court has held that irrespective of applicability of Section 11B of the Central Excise Act, doctrine can be invoked to deny ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
