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Commissioner of Central Excise, Indore (MP) Versus M/s Rinku Textiles

2015 (6) TMI 990 - CESTAT NEW DELHI

Bar of unjust enrichment - differential duty paid subsequent to the clearance by way of payment under TR-6 challans - Held that:- We find that the Tribunal in the series of judgements in the cases of Plas Pack Industries (2004 (2) TMI 125 - CESTAT, MUMBAI ), Silwester Textiles P. Ltd. Vs. CCE, Mumbai reported in (2003 (5) TMI 305 - CESTAT, MUMBAI), Industrial Cables (2001 (12) TMI 104 - CEGAT, NEW DELHI), Easter Industries Ltd. (1999 (8) TMI 915 - CEGAT, NEW DELHI ) and in the case of Southern A .....

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e Act but in absence of such supplementary invoice, no presumption can be made. We have gone through para-91 of the Apex Court's judgement in the case of Mafatlal Industries (1996 (12) TMI 50 - SUPREME COURT OF INDIA ) cited in the grounds of appeal and we are of the view that the observations of the Apex Court in that para are not applicable to the facts of this case at all. Commissioner's conclusion the differential duty had been paid subsequent to the clearance by way of payment under TR-6 ch .....

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d by them @ of 5% and 8% Adv. Subsequently, on the Department's instructions that applicable rate of duty is 10% Adv. they paid the differential duty under protest under TR-6 challan. However, no supplementary invoice was issued in respect of payment of differential duty. The appellant subsequently filed the refund claim for refund of the differential duty of ₹ 7,40,450/- paid by them under protest, as the decision of the Commissioner (Appeals) was in their favour. This refund claim wa .....

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peals) in the order also observed that the Apex Court's judgement in the case of Mafatlal Industries Ltd. Vs. UOI reported in 1997 (89) ELT 247 (SC) and in case of Jyothi Structure Ltd. Vs. CCE reported in 2003 (156) ELT 853 (Tribunal) are not applicable to the facts of this case. Against this order of the Commissioner (Appeals), the Revenue is in appeal. 2. Heard both the sides. 3. Shri Pramod Kumar, ld. Departmental Representative, assailed the impugned order by reiterating the grounds of .....

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ther dip into the excise duty component. He will do so only in the case of a distress sale. Just because duty is not separately shown in the invoice price, it does not follow that the manufacturer is not passing on the duty. Nor does it follow therefrom that the manufacturer is absorbing the duty himself. The manner of preparing the invoice is not conclusive. While we cannot visualise all situations, the fact remains that, generally speaking, every manufacturer will sell his goods at something a .....

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quently had not been realized by the respondent from their customers it can not be inferred that the respondent have discharged the burden of proof cast on them and they had absorbed the incidence of duty whose refund is claimed by them. He, therefore, pleaded that the impugned order is not correct. 4. Ms. Surabhi Sinha, Advocate, the ld. Counsel for the respondent, citing the judgement of the Tribunal in the cases of Plas Pack Industries Vs. CCE, Ahmedabad reported in 2004 (167) ELT 422 (Tribun .....

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ot applicable at all to this case. She, therefore, pleaded that there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. The undisputed fact is that during the period of dispute i.e. during the period from Jan.2003 to March, 2004, the respondent had paid the duty at lower rate @5% and 8% adv. on the cotton fabrics cleared by them. It is only subsequently that the Department took a view that the cotton fabrics cleared by th .....

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