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2015 (12) TMI 734 - CESTAT AHMEDABAD

2015 (12) TMI 734 - CESTAT AHMEDABAD - TMI - Denial of refund claim - discharge of duty liabilities under the Compounded Levy Scheme as per Annual Capacity of Production under Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 - Bar of limitation - Unjust enrichment - Held that:- Gujarat High Court in the case of M/s Premraj Dyeing and Printing Mills Pvt Ltd Vs UOI - [2013 (6) TMI 118 - GUJARAT HIGH COURT] held the first issue is in favour of the appellants. .....

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ecision of the Honble High Court. The impugned order is modified accordingly - Decided against Assessee. - Appeal No.: E/1151-1156/2008 (Appln No E/EH/10503/2015) - ORDER No. A/11654-11659 / 2015 - Dated:- 30-10-2015 - Mr. P.K. Das, Hon'ble Member (Judicial) For the Petitioner : Shri P M Dave, Advocate For the Respondent : Shri J Nair, Authorised Representative ORDER Per : Mr.P.K. Das, Common issue is involved in these appeals and therefore, all are taken-up together for disposal. 2. After .....

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submit that these appeals involve on three issues viz.:- a) Refund claims cannot be accepted without challenging Annual Production Capacity (ACP) Order. b) The Refund claims are barred by limitation, and c) The appellant failed to fulfil the principle of unjust enrichment. 4. I find that the Hon ble Gujarat High Court in the case of M/s Premraj Dyeing and Printing Mills Pvt Ltd Vs UOI - 2013.288.ELT.357(Guj.) held the first issue is in favour of the appellants. It has been held that as the ACP o .....

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se envisaged for determination of Annual Production Capacity, on the basis of the declaration made by the independent processor and if found necessary with the aid of consultation of the technical expert, it becomes clear that the determination which is arrived at cannot be termed as a judicial or even a quasi-judicial order. It is an administrative exercise undertaken by the prescribed authority of determining the Annual Production Capacity and other related issues. The appeal envisaged under S .....

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er, the manufacturer cannot claim refund of duty erroneously collected. The fact that the galleries were included while determining the Annual Production Capacity and as such, the galleries were otherwise not required to be included by virtue of the decisions of the Tribunal and the Apex Court, there is no dispute. In our view, therefore, the petitioners were justified in filing refund claims in terms of Section 11B of the Central Excise Act claiming refund of excess duty collected on the basis .....

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Apex Court ruled that an assessee cannot claim refund that too after the indefinite period of time on the strength of decision in case of another assessee. In Collector v. Flock (India) Pvt. Ltd. (supra), it was a case where classification of a product was the controversy. The Assistant Collector passed an order of such classification. Such order though appealable, was not challenged by the assessee. The assessee, however, filed a refund claim. The Apex Court observed that there is little scope .....

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