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TMI Blog2012 (7) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Schedule to the Central Excise Tariff Act, 1985,. W.E.F.1.3.1997, the goods became chargeable to ad valorem rate of duty. Since M/s. SATPL was a joint venture between the CEAT i.e. the appellant on one side and M/s. Goodyear India Ltd. Goodyear, U.S.A. from the other side, the price charged by M/s. SATPL from the appellant was not considered as a transaction at arms length and accordingly during the period 17.4.1998 to 30.6.2000, the assessment of duty in respect of the goods manufactured and cleared by M/s. SATPL to the appellants were made on provisional under Rule 9B of Central Excise Rules. The manufacturer was required to discharge the Central Excise duty provisionally on the assessable value derived after deducting 15% tentative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The learned Advocate appearing for the appellant submitted that the learned Commissioner (Appeals) has rejected the claim only on the ground of unjust enrichment which is not applicable in this case. For this purpose Commissioner has relied upon the Supreme Court judgment in the case of Mafatlal Industries Ltd. Vs. Union of India reported in 1997 (89) E.L.T 247 (S.C.), who were the manufacturer in the cited case whereas in the present case the appellants are purchasers of the goods. He submitted that the appellant had through various sales invoices and purchase invoices and comparative statement proved that increased amount of excise duty and incidence of such increase was not passed on by them to their customers. Therefore, the refund c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess duty paid to M/s. SATPL and the correct duty payable to M/s. SATPL. In fact the entire duty paid to M/s. SATPL by the appellant has been given a common treatment and has been shown as an expenditure in the books of account of the appellant. It means that the entire duty element including the excise duty paid by the appellant has been recovered on the cost side while finalizing the profit and loss statement of the appellant which means that excise duty forms the part of the cost of the tyre when the tyres are sold by the appellant. The entire duty element stands recovered and if refund is sanctioned it will amount to unjust enrichment to the appellant. He relied upon two decisions of the Tribunal in case of Maharashtra State Electric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Also department has taken a plea that railway administration colluded with the assessee in issuing letters and certificate which was rejected by the Supreme Court. Moreover, appellant themselves contended that Supreme Court decision in case of Mafatlal Industries was wrongly relied by lower authority as Mafatlal Industries were the manufacturer whereas the appellants are purchaser. We find that now they themselves are placing reliance on the case of Panihati Rubber Ltd. who are manufacturer. From the above, it is clear that the facts of the case in Panihati Rubber Ltd. (supra) are clearly distinguishable from the present case. Following the decision of the Supreme Court in the case of Allied Photographics India Ltd. (supra) we find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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