TMI Blog2016 (4) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... oices for the period prior to the period of dispute was made available to show that the price charged has been uniform throughout notwithstanding the payment of duty on the plastic tubes captively consumed. Merely because duty has been paid under protest does not give credence to the claim of the petitioner that they had not passed on the incidence of duty to their customer. In these circumstances, the ratio laid down in Union of India Vs. Solar Pesticide Pvt. Ltd. [2000 (2) TMI 237 - SUPREME COURT OF INDIA ] and Mafatlal Industries Vs. Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA] squarely applies to the facts and circumstances of the present case. - W. P. Nos. 13366 & 13367 of 2003 - - - Dated:- 10-3-2016 - M. Duraiswamy, J. For the Petitioner : Mr. N. Prasad For the Respondents : Mr. K. Ravindranath Standing Counsel (C CE) ORDER W.P.No.13366 of 2003 has been filed by the petitioner to issue a writ of certiorari to call for the records of the 3rd respondent dated 21.01.2003 confirming its earlier order dated 12.07.2002 and quash the proceedings of the 3rd respondent dated 21.01.2003. 2. W.P.No.13367 of 2003 has been filed by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - was paid subsequent to the clearance of goods and paid out of their own pock and therefore, the provisions of unjust enrichment would not apply to the entire amount of ₹ 41,58,566/-. On receipt of the order of the 3rd respondent dated 30.07.1999, the petitioner filed an application claiming refund of excise duty of ₹ 41,58,566/- paid between October 1995 and August 1999 by debiting the PLA Account. By show cause notice dated 28.04.2000, the 1st respondent proposed to disallow the claim of refund made by the petitioner. In response to the notice, the petitioner, by their letter dated 17.06.2000, submitted their objections. Personal hearing was also extended to the petitioner on 31.07.2000. By order dated 08.01.2001, the 1st respondent rejected the claim of refund and ordered a sum of ₹ 41,58,566/- to be credited to the Consumer Welfare Fund as per Section 11 B(2) of the Central Excise Act. Aggrieved by the proceedings of the 1st respondent, the petitioner preferred a statutory appeal before the 2nd respondent. By order dated 10.08.2001, the second respondent allowed the appeal filed by the petitioner and held that the petitioner was eligible for refund of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sustain the impugned order invoking the first proviso to Section 4(1)(a) of the Act. It is the order of the Collector, which is impermissible. The appellate Tribunal cannot sustain the case of the Revenue against the appellants on a ground not raised by the Revenue either in the show cause notice or in the order. (ii)2006 (202) E.L.T. 404 (Mad.) [Commissioner of C.Ex., Coimbatore Vs. Flow Tech Power] wherein the Division Bench of this Court held as follows: 3. We heard the learned counsel in length. There 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 has been absorbed by the assessee and it was submitted that the Chartered Accountant's Certificate dated 08.07.2002 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, allowed and the impugned judgment of the High Court is set aside, the effect of which would be that the Writ Petition filed by the Solar Pesticide Pvt. Ltd. stands dismissed. Writ Petition (C) No.189 of 1993 filed by M/s.Solar Pesticide Pvt. Ltd. in this Court also stands dismissed. No costs. 6. Countering the submissions made by the learned counsel for the petitioner, Mr.K.Ravindranath, learned standing counsel for the respondents submitted that under Section 35 G of the Central Excise Act 1944, an appeal shall lie to the High Court from every order passed in the appeal by the Appellate Tribunal on or after 01.07.1999. Further, the learned counsel submitted that the orders dated 21.01.2003 and 12.07.2002 were passed in a proper manner and those orders do not require any interference in these Writ Petitions. 7. In support of his contentions, the learned standing counsel relied upon the following judgments: (i) 2000 (116) E.L.T. 401 (S.C.) [Union of India Vs. Solar Pesticide Pvt. Ltd.] wherein the Hon'ble Supreme Court held that the incidence of duty being passed on to another person would take within its ambit not only the passing of the duty directly to anot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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