TMI Blog2020 (3) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... s) allowing the appeal of the assessee, setting aside the findings of the Asst. Commissioner, by which the refund is rejected on unjust enrichment, and allowed the refund. 2. The brief facts are that the appellants are registered with the Central Excise Department and are engaged in the manufacture of Lime Mixed Chewing Tobacco and filter Khaini falling under Chapter 24 of the First Schedule to Section 3A of the Central Excise Tariff Act, 1985. The appellant was paying duty on the basis of transaction value. It appeared to Revenue, that in terms of Rule 6(2) of Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 read with Section 3A of the Central Excise Act, they are liable to pay Excise duty on the basis of annual capacity of production under Rule 5 of the said Rules. Accordingly, the duty payable by them per month was determined as follows :- Sl. No. Brand Name RSP per pouch (Rs.) No. of machines in operation Deemed Annual capacity as per Notifn. 20/2012-C.E. (N.T.), dated 19-3-2012 (per year) Duty payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the said Master pouch is manufactured on machines by the other manufacturers and supplied to the appellant. 7. From the record, it appears that in the instant case, all goods falling under Tariff Item 24039910 of the First Schedule to CETA are notified for MRP based assessment in terms of Serial No. 27 of MRP based Notification. Thus, filter khaini manufactured by the appellants are notified for MRP based assessment. Now, it needs to be analyzed as to whether there is requirement to declare MRP on the packages. As per Rule 26(a) of Legal Metrology (Packaged Commodity) Rules, there is no requirement to make declaration on the package provided the net weight of the commodity is 10 grams or less. 8. During the course of arguments, we have also examined the contract; it appears that pouch is common where inside the pouch there are small sachets without any mark or print, which are simply packed with the subject item, filter khaini. 9. This issue has come up to this Tribunal in the case of CCE, Chandigarh v. Tej Ram Dharam Paul - 2013 (297) E.L.T. 125 (Tri. - Del.), where it has been observed : 9. After hearing both the sides we find that the issue required to be dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed with consequential relief. 6. The following appeals have been filed before this Tribunal, which reads as follows :- Sl. No. Appeal No. O.I.O. No. Date Amount of refund claimed Period covered 01 CE/UD/65/VIII/2017 198-202/2017/R-C.E. (Ref.), dated 30-6-2017 ₹ 20,90,225/- October-2012 02 CE/UD/66/VIII/2017 ₹ 14,74,571/- November-2012 03 CE/UD/68/VIII/2017 ₹ 14,85,359/- December-2012 04 CE/UD/67/VIII/2017 ₹ 14,88,779/- January-2013 05 CE/UD/69/VIII/2017 ₹ 14,92,395/- February-2013 7. The refund was rejected by order-in-original on the ground of unjust enrichment. Being aggrieved, the appellant preferred appeals before the Commissioner (Appeals), who vide a common order-in-appeal impugned he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is change in the rate . (iv) Commr. of C. Ex., Ahmedabad-I v. Devi Synthetics reported at 2010 (261) E.L.T. 416 (Tri. - Ahmd.) Refund - Unjust enrichment - Payment of duty under Compounded Levy Scheme - Refund held as admissible in impugned orders based on chartered accountant s certificate - Revenue contending that unjust enrichment applicable to compounded levy cases also - Facts considered in impugned orders and unjust enrichment not held as inapplicable but CA s certificate relied upon to rule out the same. In view of above, I accept the contention of the appellant so far as non-applicability of unjust enrichment clause in compounded levy. 6.2 I also find that the appellant has paid duty under protest and intimated the same to department vide letter s dated 26-12-2012, 3-1-2013, 2-1-2013 5-2-2013 and they have also clearly mentioned in their invoices that price includes Excise duty as per transaction value only . I find that Hon ble High Court in the case of Commissioner of Central Excise v. Dabur India Ltd. - 2014 (304) E.L.T. 321 (All.) while dealing similar case held that When the payment of differential excise duty was made by the respondent under protes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their profit, therefore, the refund claim cannot be denied on this ground also. Having regard to the facts and circumstances and also the amount involved, I find that appellant is eligible for the refund claimed by them and allow the appeal with consequential relief to the appellant . 8. Being aggrieved, the Revenue is in appeal only for the period October, 2012 involving the refund of ₹ 20,90,225/-. As regards the refund for the other months, the order of the Commissioner (Appeals) was not accepted on merits, but accepted on monetary limits as per instructions of the Board dated 11-7-2018. 9. Ld. Authorised Representative has urged that Hon ble Supreme Court in the case of Allied Photographics India Ltd. - 2004 (166) E.L.T. 3 (S.C.) has held that in every case of refund where the duty paid under protest, has to pass the test of unjust enrichment. Further, in the facts of this case, the refund claim was initially shown as advance excise duty deposit in the books of account/balance sheet for the relevant period and thereafter, the same was debited to the Profit Loss Account as expense of the year. This amount seems to represent their profit element less recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring a brand name. So far as the payment of excise duty under Compounded Levy Scheme for the goods bearing brand name Miraj is concerned, the appellant is under the Compounded Levy Scheme, which is not disputed. Ld. Counsel further submits that it is evident from the face of the invoice that for filter tobacco on which the appellant have collected duty as per transaction value only. Further, as the element of duty is not separately shown in the invoice, it appears to be on cum-duty basis. Thus, it is understood both by the respondent/assessee and their customers that the duty has been paid and deemed to be collected on the transaction value. Further, this fact is also supported by the accounting treatment in the books of account by the assessee, wherein they have debited the duty as per transaction value to the excise duty account and the remaining amount paid under Compounded Levy Scheme was debited to Advance Central Excise Deposit Account , which further appeared as current asset recoverable from the Government. At the end of the accounting year, they transferred such amount of ₹ 80,31,329/- to expense account in the Profit Loss Account. In such situation, there ca ..... 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