TMI Blog2014 (12) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... t was required to suo motu restitute the sum to the Revenue which they did not do. Therefore, show cause notice was issued (within a period of six months from the date of the Apex Court’s order) for recovery of the refund wrongly granted and the demand was confirmed along with interest. There is absolutely nothing wrong or illegal in confirmation of such demand as such an order only seeks to enforce the Apex Court’s decision. Therefore, the impugned order is sustainable in law and accordingly we uphold the same - Decided against the assessee. - E/3682/2004-Mum - Final Order No. A/460/2014-WZB/C-II(EB) - Dated:- 23-6-2014 - Shri P.R. Chandrasekharan, Member (T) and Anil Choudhary, Member (J) Shri Vinay N. Ansurkar, Advocate, for the Appellant. Shri Navneet, Addl. Comm. (AR), for the Respondent. ORDER The appeal arises from Order-in-original No. V.Adj.(Ch.24)15-22/2004/840, dated 28-9-2004 passed by the Commissioner of Central Excise, Mumbai-V Commissionerate. Vide the impugned order, the ld. Adjudicating authority ordered recovery of ₹ 58,71,708/- along with interest thereon from the appellant M/s. GTC Industries Ltd. which was erroneously refunded to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1994, the duty was payable under CETH 4823.19/4817.90 and the duty of ₹ 75,51,468/- was correctly paid. The balance amount of ₹ 58,71,708/- (pertaining to the period 1-3-1982 to 28-2-1986) was sanctioned to the appellant under Section 11B of Central Excise Act. The said refund comprised of ₹ 30,98,657.70 in respect of slides and shells captively consumed by the Bombay unit of the appellant, ₹ 19,59,815.69 in respect of shells and slides cleared to its Baroda unit and ₹ 8,13,234.19 in respect of shells and slides cleared to M/s. J K Cigarettes, during the period March, 1982 to February, 1986. 2.2 The said order of refund was challenged by the Revenue before the Commissioner of Central Excise (Appeals) on the ground of unjust enrichment. The said appeal was dismissed by the Commissioner (Appeals) vide OIA No. ZBN/488/MV/2001, dated 16-8-2001 on the ground that the assessee had not passed on the incidence of duty. The said order was not further challenged by the Revenue by way of appeal. In the meanwhile the department had also issued a show cause notice dated 11-5-2000 proposing recovery of erroneous refund. In view of the Commissioner (Appeals) orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sustainable. (4) The protective show cause notice dated 11-5-2000 was also dropped by OIO dated 2-1-2003. The said order was also accepted by the Department and the issue attained finality and no cause of action survives for issuance of a fresh show cause notice dated 23-9-2003. (5) The clarificatory order dated 13-3-2003 of the Hon ble Apex Court clearly shows that the issue settled by the Court was when slides and shells are cleared together, the same are to be treated as a box for the purpose of excise duty. Inasmuch as the appellant had cleared the shells and slides separately, no duty liability would accrue. (6) As regards the reliance placed by the Revenue on the decision in Woodcraft Products Ltd. case [2002 (143) E.L.T. 247 (S.C.)], the facts of the said case were totally different on the ground that in that case the respondent was granted refund subject to undertaking to make restitution of the refund in case the final outcome is against the respondent. In the present case no such undertaking has been given by the appellant. (7) The refund sanctioned to the appellant cannot be considered as erroneous as the same was granted after examining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was overruled by the Hon ble Apex Court vide order dated 6-2-2003/13-3-2003. The department has issued notice for recovery of the refund sanctioned within 6 months from the date of the Apex Court order in favour of Revenue and such a notice cannot be hit by any limitation. The appellant was required to give back the refund amount to the department on the principle of restitution as held by the Hon ble Apex Court in the case of Woodcraft Products Ltd. Reliance is also placed on the following decisions, namely, Milton Laminates Pvt. Ltd. [2002 (143) E.L.T. 622 (Tri.-Del.)] and Jay Enterprises [2004 (178) E.L.T. 72 (Guj.)]. (iv) Vide Section 144 of Code of Civil Procedure, 1908, there are powers bestowed upon the Court of first instance to cause such restitution in consequence of the reversal of the order-in-appeal. Accordingly it is pleaded that the impugned order be upheld and the appeal dismissed. 5. We have carefully considered the submissions made by both the sides. 5.1 It will be useful at this juncture to peruse the judgment of the Apex Court in this regard. In Civil Appeal Nos. 12043-12054 of 1995 decided on 6-2-2003, wherein the appellant herein was one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification which is the basis for duty demand/refund was under challenge before the Hon ble Apex Court. Thus during the pendency of the proceeding before the Apex Court, no lower authority could have granted any relief finally. All such reliefs have to be considered as interim or temporary subject to the final outcome of the decision of the Hon ble Apex Court. It is also worth noting that the order dated 16-8-2001 or 2-1-2003 did not deal with the classification matter at all and was only concerned with the issue of unjust enrichment and even if any finality has to be attributed, it can only be with reference to unjust enrichment and none-else. 5.5 An argument has also been raised that the refund was on account of duty on shells or slides alone which were cleared separately. This argument is untenable for the following reason. Out of the refund of ₹ 58,71,707/-, ₹ 30,98,657.70 pertained to shells and slides captively consumed in the Bombay unit. In the case of captive consumption, there cannot be any separate consumption of the shells and slides, as both are used simultaneously in the packing of cigarettes. Thus together they constitute a box as held by the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tobacco Products Ltd. [(2004) 6 SCC 186 = 2004 (170) E.L.T. 135 (S.C.)] the Hon ble Apex Court held as follows :- Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case. Circumstantial f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. 5.10 The above principle was followed by the Hon ble Apex Court in Woodcrafts Products Ltd. (supra) wherein it was held that if refund was granted in pursuance of the order of the Tribunal and the said order of the Tribunal was subsequently reversed by an order of the Supreme Court, that itself would require the assessee to make restitution of the sum that the Revenue had refunded to it pursuant to the Tribunal s order. In the said case the Hon ble Apex Court held as follows :- 4. Plainly the assessee is obliged to make restitution. The Revenue honoured the Tribunal s order and made the refund. Upon reversal by this Court of the Tribunal s order, the assessee was bound in law to restitute the amounts of such refund to the Revenue. 5.11 The above ratio applies on all fours to the facts of the present case. The refund was s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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