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

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)125 - CESTAT, MUMBAI ), Silwester Textiles P. Ltd. Vs. CCE, Mumbai reported in (2003 (5)305 - CESTAT, MUMBAI), Industrial Cables (2001 (12)104 - CEGAT, NEW DELHI), Easter Industries Ltd. (1999 (8)915 - CEGAT, NEW DELHI ) and in the case of Southern Agrifune Indus. Ltd. .....

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uch 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)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 challans, the bar of unjust enri .....

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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 was rejected by the Asstt. Commi .....

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ved 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 appeal in the Revenue's ap .....

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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 above the cost-price plus duty. .....

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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 (Tribunal), Industrial Cables Vs. CCE .....

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ase. 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 them would attract duty @ 10% ad .....

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