TMI Blog2008 (6) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... lastics are exempt from duty by notification 132/86 dated 1-3-86. The respondents filed a classification list with effect from 1-3-86 in respect of the final products in question claiming the benefit of notification 132/86 which was approved finally. However, on or about 17-11-86 the department raised objections regarding the eligibility of the products (composite articles) to the benefit of notification 132/86 and insisted that they clear the products on payment of appropriate duty on 17-11-86. They were asked to file another classification list with effect from 21-11-86 in which again the appellants claimed benefit of notification 125/86 but the same was arbitrarily scored of as the classification list was approved by the Asst. Commissioner on 18-12-86 requiring them to pay duty at the rate of 15% ad valorem. They therefore addressed a letter dated 5-12-86 to the Jurisdictional Asst. Commissioner which was delivered and received in the Range office on 5-12-86 and in (ho Asst. Commissioners office on 15-12-86 stating that they shall be paying duty under protest and shall be availing modvat credit under the modvat scheme. Against the approval of the classification list they filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA account which was also adjusted and accordingly, the net refund claimed worked out to Rs. 35,28,960,40. Besides an amount of Rs. 1,31,952.78 was also held as time barred as it related to a period 5-12-86 to 14-12-86 i.e. the period which was prior to their letter of protest which was received in the Asst. Commissioner's office on 15-12-86. The balance claim was also rejected on the ground of unjust enrichment as the duty was recovered from the customers. He rejected the plea of the respondents that the prices of the impugned products remained same both prior to imposition of duty and during the period when they were paying duty as well as when they stopped paying duty. It was held by him that in the price list submitted by the respondent the assessable value was much below the invoice value even after allowing the deduction of sale tax and discount passed by assessee which only establish that the duty was recovered by him from his customers. The respondent filed appeal against the order of the Asst. Commissioner rejecting the entire refund claim. The Commissioner (Appeals) in his order held that so far as the refund relating to an amount of Rs. 28,99,754.35 was concerned, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot avail of modvat credit in respect of inputs used in the manufacture of exempted final product, a mere non-issuance of show cause notice will not entitle the respondents to get the refund. If at all the refund is to be allowed, it should have been allowed by credit in RG23A Part II account. The Tribunals decision in the case of Orissa Extrusion Ltd - 1996 (83) E.L.T. 308 (T) was cited wherein modvat credit denied on inputs used in exempted final product was held to be ineligible for payment of duty on other final products. As regards refund amount to Rs. 1,31,952.78 it was stayed that since the protest letter was received in the Divisional office on 15-12-86 the same shall have effect from that date and accordingly rejection of refund of the amount for the period 4-12-86 to 14-12-86 on ground of time bar was in order. 4. As regards the applicability of doctrine of unjust enrichment it was submitted that the assessee have opted for cum duty price structure and has, claimed abatement in the price list on account of sales tax/trade discount and Central excise duty. However, while preparing the invoice they have been showing only discount/sales tax but not the Central e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that refund of amount of Rs. 28,99,754.35 could not have been denied once a show cause notice was not issued to this effect even though the credit was not admissible to them and in support thereof he referred to the decision of the Tribunal in the case of Commissioner v. Pratap Rajasthan Copper foils in Order No. R/106-1998-NB (DB) dated 9-10-1998 wherein similar situation it was held, that proforma credit availed by the assessee could not have been recovered from him while granting refund without issuance of a show cause notice. Similarly, the Bombay High court has in the case of Western Bengal Coal Fields v. U.O.I. - 1989 (43) E.L.T. 27 (Bom.) held, recovery by adjustment is not allowable as recovery can be made only by resort to the procedure as laid down under section 11A of the Central Excise Salt Act, 1944. In view of this, the refund of this amount could not have been denied. As regards the refund of Rs. 1,31,952.78 on ground of time bar, it was submitted that once the protest letter was received in the Range Office on 5- 12-1986 the protest will be effective from that date irrespective of the fact that the same was received in the Divisional office on 15-12-86. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age the assessment were made provisional and classification list was approved on 8-12-86 itself and once the classification list was approved whether after affording an opportunity of hearing or without opportunity of hearing, the assessment cannot be held to be provisional and the decision of the Apex Court in Samrat International is not applicable as in that case the assessment were deemed to be provisional during the time the classification/price list submitted by the assessment is approved by the Asst. collector which is not so in the present case. This view is duly supported by the Tribunal's decision in the case of MRF Ltd. and Supreme Court decision in Metal Forgings cited supra. Therefore, the doctrine of unjust enrichment will equally apply in the present case also. So far as the passing of the incidence of duty is concerned, the respondents main plea is that the price has more of less remained same during the entire period i.e. introduction of duty, after introduction of duty and after withdrawal of duty. This cannot be considered as sufficient as has been held by the Supreme Court in the case of Mafatlal - 1997 (89) E.L.T. 247 (S.C.) and Madras High Court in 1992 (59) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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