TMI Blog2018 (5) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... llant had paid the duty under protest and also not passed on the burden of duty as they have admittedly shown the amount as recoverable from the Central Excise Department in their balance-sheets. The Adjudicating Authority is directed to grant the refund alongwith interest as per rules within a period of 75 days from the date of receipt of a copy of this order - appeal allowed - decided in favor of appellant. - E/56834/2013, E/51945/2015, E/51961/2015, E/70403/2016 - Final Order Nos. 70788-70791/2018 - Dated:- 7-3-2018 - Hon ble Mr. Anil Choudhary, Member (Judicial) And Hon ble Mr. Anil G. Shakkarwar, Member (Technical) Shri B.L. Narasimhan (Advocate) Shri Atul Gupta (Advocate) for Appellant Shri Pradeep Kumar Dubey (Supdt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged by the appellant before Hon'ble Allahabad High Court and also by similarly placed other manufacturers of edible oil coconut oil, before various other High Courts. Pending decision by the High Courts, the appellant intimated the Department that they would be paying the duty under protest and would claim refund of the same once the issue of classification is decided in their favour. In view of the circular of the CBEC, since the Department was insisting on payment of duty on these goods, the appellant started paying excise duty on Anmol Coconut Oil under protest from June 2009. It is relevant to mention here that the duty rate on edible oil was nil under Chapter Heading 15131900. The appellant also intimated that the duty incide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. The operative portion of the said order of this Tribunal is reproduced for ready reference:- Coming to the question of classification on merits, on going through the Order-in-Original passed by the Asstt. Commissioner and Order-in-Appeal passed by the Commissioner upholding the Asstt. Commissioner s order, we find that the orders of both the lower authorities rely upon the Board s Circular dated 3-6-2009 issued under Section 37B of the Central Excise Act, 1944 and also the judgment of the Supreme Court in the case of Ranadey Micronutrients (supra) and CCE v. Dhiren Chemical Industries (supra), wherein it was held that the Board s Circular even if contrary to the provisions of law, are binding on the Departmental officers, we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Heading No. 3305 which covers Hair Oil and the relevant Chapter and Section Notes examined the question of classification of Coconut Oil in the packing upto 200 ml, which are not marketed as Hair Oil and held that just because the retail packs are of 200 ml. of less, the same cannot be presumed to be meant for use as Hair Oil and would not be classifiable under Heading No. 3305. One of the Tribunal s judgment is in the case of Capital Technology Ltd. (supra) reported in 2011-TOIL- 775-CESTAT-Bang = 2015 (321) E.L.T. 479 (Tri.-Bang.), wherein the Tribunal independently examined the issue of classification of Coconut Oil packed in retail packs of 50 ml., 100 ml. and 200 ml in respect of the period w.e.f. 28-2-2005 and after discussing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal another order dated 4 June, 2015 was also passed by this Tribunal upholding the classification in favour of the appellant- assessee and this order also attained finality as the same was not further appealed against. Pursuant to the orders of this Tribunal, Commissioner of Central Excise, Ghaziabad dropped the proceedings initiated against the appellant on the very same issue for the period immediately prior to June 2009 vide Order-in-Original No. 22/Commissioner/CEX/GZB/2016 17 dated 14 October, 2016 and this order have also attained finality and not reviewed or appealed against by any of the parties. 6. In the present appeals the learned Commissioner (Appeals) have upheld the classification of the product in favour of the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence of duty on their buyers. They are not passing on the duty, is also evident from the records as they have themselves borne the incidence and shown the said amount as recoverable from the Central Excise Department and the same appears in their balance-sheets from year to year. This actual position is undisputed. The learned counsel points out that for the period September, 2011 to March, 2012 pursuant to the remand order of this Tribunal, the Deputy Commissioner of Central Excise have passed Order-in- Original dated 04 December, 2015, sanctioning the refund after examining the issue of unjust enrichment. Further the amount of interest not granted by the Adjudicating Officer have been allowed by the Commissioner (Appeals) vide Order- in- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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