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2016 (4) TMI 727 - MADRAS HIGH COURT

2016 (4) TMI 727 - MADRAS HIGH COURT - 2016 (335) E.L.T. 204 (Mad.) - Refund claim denied - doctrine of unjust enrichment - Held that:- In the instant case, the plastic pipes/tubes were cleared on payment of duty for captive consumption in the manufacture of Drip Irrigation System and the petitioner was not able to produce any documentary proof to establish that the duty has not been passed on to the buyer. In the judgment reported in Mafatlal Industries Vs. Union of India [1996 (12) TMI 50 - SU .....

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none of the invoices 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 2 .....

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ent 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 to issue a writ of certiorarified mandamus to call for the records of the 3rd respondent herein in Final Order dated 12.07.2002 and to quash the same and direct the 1st respondent herein to restore to the petitioner a sum of ₹ 41,58,566/- being amounts paid under protest between the period 01.10.1995 an .....

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lastic pipes/tubes cleared as part of the Drip Irrigation System involved a clearance of dutiable goods and therefore, ₹ 9,70,085/- for the period from 01.10.1995 to 04.03.1996 on such plastic pipes/tubes was proposed to be demanded. Subsequently, the demand was confirmed by order dated 04.12.1996 by the Commissioner of Central Excise and Customs, Coimbatore. The petitioner paid sum of ₹ 10,45,885/-, comprising of ₹ 9,70,085/- towards duty on plastic pipes/tubes and ₹ 75, .....

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as parts of Drip Irrigation System. However, in the meanwhile, the petitioner had paid the duty under protest amounting to ₹ 92,02,446/-. A portion of this duty paid by using MODVAT credit available on the raw materials, had entered the manufacture of plastic pipes/tubes amounting to ₹ 50,43,880/-. A balance of ₹ 41,58,566/- was paid by the petitioner out of their own pocket by debiting the PLA account required to be maintained under the Central Excise Rules and this includes .....

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t. 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 Exc .....

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t respondent. Thereafter, the petitioner took out an application for rectification and by order dated 21.01.2003, the 3rd respondent dismissed the application for rectification. Against the orders dated 12.07.2002 and 21.01.2003, the petitioner has filed the above Writ Petitions. 4. The learned counsel appearing for the petitioner submitted that the 2nd respondent had rendered clear findings that the price of plastic pipes/ tubes, which were part of the Drip Irrigation System on which excise dut .....

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.T. 225 (S.C.) [SACI Allied Products Ltd. Vs. Commissioner of C.Ex., Meerut] wherein the Hon'ble Supreme Court held as follows: 17.Thus according to the appellate Tribunal, since the dealers in Uttar Pradesh who purchase the goods from Syndent, and independent dealers in other parts of the country to whom, the appellants directly sold the goods are different class of buyers, appellants' price to the independent dealers cannot be taken as the basis for assessing appellants' sales to S .....

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invoked by the Department either in the show cause notice or in the impugned order and it was for the first time that the appellate Tribunal in the impugned order has sought 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 .....

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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 account and had been passed on to the customer. 4. In the foregoing conclusions, we find no error in the order passed by the Customs, Excis .....

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Court in Mafatlal Industries case [1997 (89) E.L.T. 247 (S.C.)]. Relevant portion of the order passed by the Supreme Court in Mafatlal Industries case (supra) has been extracted in the grounds (b) and (c). There is no dispute with regard to the proposition of law as laid down by the Supreme Court. In the present case, as is evident from the records, it is not a case of refund of duty. It is a pre-deposit made under protest at the time of investigation, as has been recorded in the original procee .....

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t the High Court has not correctly interpreted the relevant provisions of the Customs Act and, in our opinion, the principle of unjust enrichment incorporated in Section 27 of the Act would be applicable in respect of imported raw material and captively consumed in the manufacture of a final product. Whether the incidence of the duty had been passed on to the consumer was not decided by the High Court in Solar Pesticide's case (supra) because in its opinion the principle of unjust enrichment .....

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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 .....

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reported judgment made in W.P.No.24615 of 2012 etc., batch dated 30.10.2013, the Division Bench of this Court answered the reference made by the learned Single Judge as follows: The order passed by the CESTAT in terms of Section 35F of the Central Excise Act, 1944 or Section 129-E of the Customs Act, 1962 is appealable in terms of Section 35G of the Excise Act, 1944 or Section 130 of the Customs Act, 1962. 8. In the judgment reported in 2000 (116) E.L.T. 401 (S.C.) [Union of India Vs. Solar Pest .....

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rip Irrigation System and the petitioner was not able to produce any documentary proof to establish that the duty has not been passed on to the buyer. In the judgment reported in 1997 (89) E.L.T. 249 (S.C.) [Mafatlal Industries Vs. Union of India], the Hon'ble Supreme Court held that it is the responsibility of the assessee to establish that the duty incidence has not been passed on to any other customer. The respondents 1 & 3 relying upon the judgment of the Hon'ble Supreme Court re .....

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