TMI Blog2009 (1) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... Member (T) Shri N.A. Sayeed, JDR, for the Appellant. Shri Anil Balani with Ms. Shefali Salian, Advocates, for the Respondent. [Order]. - This is an appeal filed by Revenue. 2. Brief facts of the case are that the respondents M/s. Rice India has imported refined sugar which was assessed under Customs Tariff Heading 17011109. The sugar so imported was charged cess at the rate of Rs. 14/- per quintal under Sugar Cess Act, 1962 and accordingly the importer paid an amount of Rs. 5,25,000/- towards Sugar Cess. The levy of sugar cess was challenged by the importer in Bombay High Court and the Hon'ble Court held that the sugar cess cannot be levied on imported sugar. The respondent thereafter filed a refund claim in respect of suga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore claiming a relief of refund, appellant shall show that he has paid the amount for which relief is sought, he has not passed on burden on consumers, if such relief not granted, he would suffer loss. 4. It was further submitted that the views expressed by Apex Court have been since echoed by Hon'ble Bombay High Court in the case of Shree Vindhya Paper Mills v. Union of India - 2005 (187) E.L.T. 442 (Bom.) in following words :- "The aforesaid judgment of the Apex Court in clearest possible term has held that the doctrine of unjust enrichment is based on equity and the same is very much applicable irrespective of application of Section 11B of the Central Excise Act. Such similar provision merely gives recognition to the equitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered as proper as has been held by Tribunal in the case of CCE, Siliguri v. Mukta Biri Factory - 2007 (212) E.L.T. 285 (Tri.-Kolkata) and CC, Mumbai v. Sanjay Shah - 2007 (217) E.L.T. 242 (Tri. - Mum.). 6. On merits he invited attention to the provisions of Sugar Cess Act, 1982 where Section 3(1) clearly states "there shall be levied and collected as a cess, for the purposes of the Sugar Development Fund Act, 1982, a duty of excise on all sugar produced in any sugar factory in India, at such rate not exceeding Rs. 15/- per quintal of sugar as the Central Government may, by notification in the Official Gazette, specify from time to time." Sub-section (2) further says "that duty of excise levied under sub-section (1) shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en claimed on the ground that the provisions of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of suit or by way of writ petition." It was submitted that since this collection of sugar cess was unconstitutional they have filed a writ petition in Bombay High Court and Bombay High Court has directed them to file refund claim with the appropriate authorities. In view of this the refund claim cannot be denied on the ground of unjust enrichment. The facts of the case in Sahakari Khand Udyog Mandal Ltd. and other decision cited by Revenue are different as in those cases the collection of duty was not unconstitutional as is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de out by the respondents. In fact this distinction has been very clearly brought out by the Apex Court in the case of SRF Ltd. v. Asst. Collector of C.Ex. - 2001 (134) E.L.T. 324 (S.C.) wherein in para 6 it has been clearly stated that the Mafatlal Industries case refers to a situation where a provision of the Act under which tax is levied is struck down as unconstitutional for transgressing unconstitutional limitation. It further observes that this is class of cases where the claim for refund was held to be outside the purview of the Act which for sake of convenience was called as unconstitutional levy in Mafatlal Industries case. Para 7 further goes to state that even if it is assumed to be unconstitutional levy, still the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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