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TMI Blog2012 (7) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.3.79 ( prescribing concessional rate) by Notfn. No.284/82-CE dated 30.11.1982 which made the tariff rate of duty applicable to cigarettes with effect from 30.11.1982. However, the respondent came to know about the order passed by the Madras High Court in the case of M/s. Asia Tobacco Ltd. that any Notification issued takes effect not from its date of issue but from the date it is made known to the public in gazette. Since the Notification 284/82-CE dated30.11.1982 rescinding the Notfn.30/79-CE dated 1.3.79 was brought to their notice on 14.12.1982 vide letter dated 14.12.1982 of the Range Supdt. , the duty at the tariff rate ought to have been collected from them from 14.12.1982 onwards and not from 30.11.1982. The respondents therefore filed the refund claim of Rs. 54,40,042.71. The above refund claim was rejected the then Asst.Collector Division VI vide order dated 22.07.1985 on the ground that once the Notification is published in the Gazette, the Notification will have the effect from the dater of publication in the official Gazette. 3. Being aggrieved by the order of the Asstt.Collector, the respondent filed Writ Petition No.2413/85 in the Hon ble Mumbai High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of the cigarettes in which the contention of the respondent was that for the purpose of computing the assessable value the amount of duty was to be deducted at the full tariff rate from the cum-duty-price and thereafter duty was payable at concessarional rate on ex-duty price. On the other hand, the department was of the view that deduction from cum- duty price was also to be made at the concessional rate only. Writ petition was filed by the respondent before the Hon ble Delhi High Court which was rejected and it was held by the Court that duty at only concessional rate was deductible from the cum-duty price for determination of assessable value reported as I.T.C. Ltd. and another vs Union of India and others 1987(30)ELT 321 (Delhi). In pursuance of the Delhi High Court s order the respondent was required to pay Rs. 20,23,381.53 to the department. 6. The Dy.Commissioner vide O/Ol No.03/GSA/Refund/2003 dated 7.5.2003 after rejecting the amount of Rs. 20,33,381.53 out of Rs. 35,57,094.53 sanctioned the refund amount of Rs. 15,33,713/- but since the incidence of duty has been passed on to the buyers, the said amount was ordered to the credited to the Consumer Welfare Fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the full tariff rate and duty computed based on deduction at the concessional rate had already been paid by them by way of adjustment of Rs. 20,23,381.53 from the refund claim to give the effect to orders of of the Delhi High Court. He, therefore, submitted that now denying the balance amount only on the ground of unjust enrichment is unlawful. He submitted that the deduction of duty amount at full tariff rate from the cum-duty price was on ly for the purpose of computing the assessable value and such computation cannot be a basis for the presumption that the respondent had actually collected duty at full tariff rate from the buyers in spite of the fact that it was eligible for making payment of duty at concessional rate. He contended that the amount deducted from cum-duty price to calculate assessable value does not represent the actual amount of duty collected by the respondent from the buyers. He relied on the decision of the Patna High Court in the case of Bata Shoe Company vs. CCE, patna ( Civil Writ Jurisdiction Case No. 1330 of 1970 decided on 28/6/1971) which was affirmed by the Supreme Court in Bata Shoe Company (P) Ltd. Vs. Collector of Central Excise 1985 (21) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting element of excise duty. Assessee in this case placed reliance on the decision of the Supreme Court in the case of Bata Shoe Co. -1985(21)ELT 9 (S.C.) The relevant para 21 & 22 of the decision are reproduced below:- 21 Strong reliance was placed on behalf of the assessee on the decision of this Court in the case of Bata Shoe Co. v. Central Excise, 1985(21)E.L.T. 9(S.C.) = (1985) 3 SCR 960, and particularly, on the passage below:- . It is, therefore, plain that before determining the question of availability of the exemption under Notification dated July 24, 1967, the first essential step is to determine the value of the article in the manner prescribed in Section 4 of the Act. The fact that on such a computation the article may ultimately be found to be exempted from excise duty does not have any bearing on the question of applicability of Section 4 of the Act for determining the value , for purpose of duty. 22. Section 4 has undergone drastic changes since this case was decided. The concept of effective duty of excise was also not there at that time. 11. We find that in the cases cited by the respondents, the court examined the value of footwe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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