TMI Blog2016 (7) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... igendum, appellant filed refund claim for the excess duty paid. Held that:- after issuance of corrigendum the excess duty, paid lacks the colour of duty and is merely a deposit - the excess paid is only an amount deposited by appellant, not being duty is not hit by doctrine of unjust enrichment. - appellant is eligible for refund. The appeal is allowed with consequential reliefs, if any. - Decided in favor of assessee. - E/23837/2014 - Final Order No. A/30512/2016 - Dated:- 8-6-2016 - Ms. Sulekha Beevi, C.S. Member (Judicial) Shri S.Gokarnesan, Advocate for the Appellant Shri V. Ramakrishna, AR for the Respondent ORDER The appellant is aggrieved by rejection of refund claim on the ground that the amount is hit by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckaged cement when cleared to customers where the MRP is not required to be affixed as per Legal Metrology, Act Rules (ie. sale to Industrial and Institutional Consumers) the rate of duty would be the same as that of loose cement. 5. Later by Notification No. 12/2012.CE dated 17-03-2012, the rate of duty for cement other than those cleared in packaged form (ie. loose cement was enhanced from 10% to 12%. This notification did not contain the proviso to Sl.No.52. As such the duty payable on loose cement was 12% and that of cement cleared in packaged form where RSP is not. required to be affixed (sale to Industrial and Institutional Consumers) was 12% Adv. + ₹ 120 per mt. specific rate. 6. Later, a corrigendum to Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such proof /evidence have been produced. There is no indication of reduction in prices pursuant to reduction in duties. 9. The appellant carried the issue in appeal before the Commissioner (Appeals) and vide the Order impugned herein, the Commissioner (Appeals) rejected the refund upholding the order of the original authority. The Commissioner (Appeals) observed that appellant had cleared the goods on charging applicable rates of duty liability in the invoices, though the sale price remained the same before as well as after change of rate of duty. Refuting this the appellant contends that duty liability was shown in the invoice only because it was required under law to do so and as the price remained uniform, the incidence of duty has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) The difference amount(excess paid ) paid is only a deposit and not duty. After issuance of corrigendum, the Government has no power to collect excess amount as duty. It becomes only a deposit. For the amount paid as deposit, unjust enrichment is not applicable. 13. Countering these contentions, the learned AR vehemently argued that when the appellant has issued invoices showing the higher duty, it definitely means that the incidence of duty has been passed on. Unless the appellant furnishes credit notes or other documents, to establish that duty has not been passed on to another, the refund claim is hit by unjust enrichment. He argued that duty can be collected by appellant only by issuing Central Excise invoices. On issuing such i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,27,000/- (M) Less VAT : ₹ 16,083/- (N) Freight : RS. 4,493/- (O) Revised assessable value (L-M-N)/ 1.1236 : ₹ 94,717/- (P) Revised duty (0*0.1236) : ₹ 11,707/- (Q) Difference (excess duty paid) (H-P) : ₹ 2,750/- 16. The learned counsel by this chart attempts to establish that the price( ₹ 1,27,000/-) remained the same always and that therefore, the duty has not been passed on. The learned counsel contends that the price to customer is a composite price and such price has not changed prior to 17-03-2012 or after during the period 17-03-2012 to 24-03-2012. 17. Another argument advanced by the counsel is that the excise duty was mentioned in the invoices due to statutory requirement. That o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any 1997(90) ELT 260 SC. 19. It is correct that the appellant has issued Central Excise invoices showing the duty element. But by the issuance of corrigendum the amount shown as duty in the invoices looses the colour/character of duty and becomes a mere deposit. In Polyplex corp Ltd vs UOI 2014(306) ELT 377(All) the Hon'ble High Court had occasion to analyse the nature and effect of corrigendum. It was observed that corrigendum is not an amendment or modification or alteration in the earlier notification so as to make a change therein as such, but when the author of document makes a correction, it relates back to the date of initial authority for the reason that correction means whatever written was not correct or there was some mist ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
