TMI Blog2006 (1) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms, Excise and Service Tax Appellate Tribunal, Chennai, raising the following substantial questions of law. "1. Whether the Commissioner (Appeals) and the Tribunal have not committed an error of law in holding that the claim for refund is not barred by limitation since the duty was paid under protest when the respondent has not followed the procedures contemplated under Rule 233 B of the erstwhile Central Excise Rules, 1944. 2. Whether the Commissioner (Appeals) and the Tribunal have not committed an error of law in holding that the respondent is entitled for refund since there was no unjust enrichment merely relying upon the certificate issued by the Chartered Accountant and the Profit and Loss Account submitted by the respondent?" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Tariff Act, 1944 Hence, the Commissioner of Central Excise, confirmed the demand of duty of Rs. 17,41,377/- and imposed a penalty of Rs. 1,00,000/- and further allowed at Modvat Credit admissible to them. (ii) The assessee filed an appeal against the Commissioner's order before the CEGAT, Chennai contending that the items in question manufactured were also classifiable under 84.24 and they had rightly granted exemption under the said notification and the said items were not Tubes and Pipes and other plastics for classification under Heading 3917.00. The Tribunal in its Order No. 1262/2K, dated 5-9-2000, [2001 (130) E.L.T. 541(Tri. - Chennai)] allowed the appeal filed by the assessee. Consequent to the said order, the assessee filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above aspect, the Assistant Commissioner, Coimbatore II Division filed an appeal for modification of the order in Order No. 207/2003 under Section 35E (2) of the Central Excise Act, 1944 which is pending before the Commissioner (Appeals), Coimbatore. Thus the question of unjust enrichment is yet to be decided by the Commissioner (Appeals), Coimbatore in the Appeal filed by the Department. (iv) Meanwhile, aggrieved by the rejection of refund order in Order No. 207/2003 dated 21-8-2003 passed by the Assistant Commissioner of Central Excise, Coimbatore II Division, the respondent filed an appeal before the Commissioner (Appeals), Trichy, who allowed the respondent's appeal vide Order No. 88/2004, dated 31-3-2004 by holding that the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was a factual finding by the authorities below that the duty had been paid under protest and the question of time bar would not arise. Hence, the argument that the petitioner paid the duty without protest is rejected. In respect of unjust enrichment, the facts reveal that the price was a composite one fixed by the Ministry of Agriculture. The factual position is that the duty had been absorbed by the assessee and it was submitted that the Chartered Accountant's Certificate dated 8-7-2002 and the profit and loss account, also confirm that the duty paid on the impugned goods had been absorbed by the assessee and had been shown as expenditure in profit and loss account and had not been passed on to the customer. 4. In the foregoing conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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