TMI Blog2023 (8) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... PREME COURT] , observed T he word buyer in Clause (e) to proviso to Section 11B(2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission which remains to be considered is the requirement of verification to be done for the purpose of finding out who ultimately bore the burden of excise duty. It might be difficult to identify who had actually borne the burden but such verification would definitely assist the Revenue in finding out whether the manufacturer or buyer who makes an application for refund are being unjustly enriched. If it is not possible to identify the person/persons who have borne the duty, the amount of excise duty collected in excess will remain in the fund which will be utilized for the benefit of the consumers as provided in Section 12D. In the present case, admittedly the application for the refunds have been filed by the appellant in respect of the goods which were cleared by them on payment of duty assessed by them on the value determined at the place and time of removal. It is settled law that the duty has to be determined and paid by the appellant assessee at the time of clearance of the goods on the invoice made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Hon ble Apex Court in case of Addisson Co. - As directed by the Hon ble High Court vide order dated while remanding the matter for reconsideration to the tribunal vide order dated 24.09.2018 we refer to the Certificate of Chartered Accountant produced by the Appellant Assessee - From the above certificate what is evident that certain amounts paid towards central excise duty is shown as amount receivable in the books of account of the appellant. Said certificate is totally silent on the aspect as to who has borne the burden of duty as the same do not refer to any invoice or the credit notes issued by the appellant assessee. Hon ble Supreme Court has dismissed the appeal against this order by referring to the Chartered Accountant certificate which clearly contained the details of credit notes and the cheques issued. There are no such details in the CA Certificate produced, hence it cannot be said that this CA Certificate establishes that the burden of the duty claimed as refund has not been passed on to the customers. Thus there are no merits in the submission made to remand the matter for consideration of the issue in light of the CA Certificate. Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MBER (TECHNICAL) AND HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Appearance: For the Appellant : Shri Mayur Shroff, Advocate along with Shri Prasad S. Tendulkar, Consultant, For the Respondent : Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorized Representative PER: SANJIV SRIVASTAVA The appeals listed in column 2 of table below have been filed against the order in appeals as indicated in the column 3. The appeals at S No 1 2 have been filed by the revenue while all the other appeals have been filed by the assessee. The common issue involved in all the appeals except for the appeal at Sr. No 20 is in relation to the refund claims filed by the appellant for the amounts as indicated in the Column 4 for the periods as indicated in Column 5. S.No Appeal No. Order-in-Appeal Amount (Rs.) Period 1 E/103/10 PII/PAP/193-195/09 dated 14-09-09 2,68,644/- Aug. to Nov. 2007 2 E/104/10 PII/PAP/193-195/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E/63/12 PII/VSGRAO/120 121/2011 dated 12-10-11 17,59,172/- April to June 2010 18 E/1171/12 PII/RKS/151-153/12 dated 15-05-12 7,00,772/- Oct. to Nov. 2010 19 E/1172/12 PII/RKS/151-153/12 dated 15-05-12 10,14,201/- Dec. 2010 to Jan.2011 20 E/1173/12 PII/RKS/151-153/12 dated 15-05-12 4,97,592/- Feb. to March 2011 21 E/1502/11 PII/VSGRAO/50-53/11 dated 30-06-11 7,21,431/- March 2010 22 E/1503/11 PII/VSGRAO/50-53/11 dated 30-06-11 3,61,683/- January 2010 23 E/1504/11 PII/VSGRAO/50-53/11 dated 30-06-11 4,88,517/- February 2009 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablish that the burden of duty has not been passed on by the Appellant's to its customers, though recorded has not been dealt with. Ms. Patil very fairly states that mere passing of credit notes would not amount to discharge of burden to establish that the duty has not been passed on customers and invites our attention to the decision of the Supreme Court in the case of Commissioner of Central Excise, Madras Vs. Addison Co. Ltd.[2016 (339) ELT 177 SC.]. However, she points out while holding so, the Apex Court has observed in paragraph 35 and 36 of its order (in respect of one of the Appeal from a group of Appeals disposed of by the Common order) the Court observed that where the Chartered Accountant's certificate has been produced in support of a claim and its genuineness has been accepted by the Tribunal then in such a case, the burden of not having passed on duty stands discharged. 6. We note that as rightly contended, the impugned order does not deal with the Appellant's contention that the burden stands discharged by virtue of the Chartered Accountant's certificate. The impugned order of the Tribunal merely relied upon decisions of its coordinate benche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claimed as receivable in the books of account and not charged the same to profit and loss account. In the course of the proceedings before the lower authorities the Appellants have also produced Chartered Accountants certificate to that effect. It is thus manifest that there is no Unjust Enrichment of the Appellants. As per the prevalent legal position at the time the impugned orders were passed the evidence simpliciter in the form of issue of credit notes to the immediate buyer was sufficient to discharge the burden regarding not passing on of incidence of duty under Section 12B of the Act and it was also laid down by various decisions that the burden cannot survive against the assessee ad infinitum and once it was proved that the manufacturer had not passed on the incidence of duty to its buyers the amount was refundable to the manufacturer. The judgment of the Hon'ble Madras High Court in Addison Co. Vs. Commissioner of C. Ex., Madras- 2001 (129) ELT 44 (Mad.) wherein the aforesaid view was taken was subsequently reversed by the Hon'ble Apex Court in Commissioner of Central Excise, Madras Vs. Addison Co. Ltd. - 2016 (339) E.L.T. 177 (S.C.). In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same to answer the substantial question of law in favour of the Appellants and against the Revenue. The amount claimed as refund has also been shown as receivable in the books of accounts and not charged to profit and loss accounts and the Appellants have also produced Chartered Accountant's certificates before the lower authorities to the above effect. As submitted in the previous submissions; the Appellants thus crave for an opportunity to establish that the incidence of duty has not been originally passed on to their customers and thus they would be entitled to the refund. The subject Show Cause Notices sought to reject the Appellants under Section 11B of the Act only on the ground of unjust enrichment. The rejection of the claims was also under Section 11B of the Act on the grounds of unjust enrichment. In some of the Appeals preferred by the Appellants a part of the refund claims in respect of the individual credit notes involved in the claims have been held to be time barred. The Appellants concede that they are not entitled to such refund which is time barred. Without prejudice to the above submissions it is submitted that the ground of unjust enrich ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Departmental Appeal to the effect that the duty element is not mentioned in the credit notes and this indicates that the assessee has passed on the duty element to the buyers and accordingly the doctrine of unjust enrichment is applicable is thus not sustainable. The Departmental Appeals deserve to be dismissed on the ground of Government's litigation policy instruction F. No. 390/Misc/116/2017-JC, dated 22-8-2019 (Copy enclosed and marked EXB. IV) as the amounts involved are below 50 Lakhs. In fact, one of the Appeals against the aforesaid Order-in-Appeal No. PII/PAP/193-195/09 dated 14-9-2009, being Appeal No. 102/10 - Mum, has already been dismissed by the Hon'ble Tribunal vide its Order No. A/88553-88586/16/EB dated 117-16 (Copy enclosed and marked EXB. V) as the revenue implication was less than Rs. 10 Lakhs as per the litigation policy as prevalent at that time. The Appeal No. E/64/12 is against Order-in-Appeal No. PII/VGSRAO/106/2011 dated 10/10/2011 rejecting the Appeal against Order- in-Original No. ADJ/33/ KOP-I/2011-12 dated 6-62011. Vide the said Order- in-Original the learned Assistant Commissioner had rejected the Appellants' request of assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (89) ELT 247 (SC)] o ALD automotive Pvt Ltd. [2018 (364) ELT 3 (SC)] 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 It is submission of the appellant assessee that Appeal No. E/64/12 against Order-in-Appeal No. PII/VGSRAO/106/2011 dated 10/10/2011 rejecting the Appeal against Order- in-Original No. ADJ/33/ KOP-I/201112 dated 6-6-2011has become infructuous hence the same is dismissed as infructuous. 4.3 On the issue whether the bar of unjust enrichment will not apply to refund claims filed by the manufacturer, if he issues the credit notes subsequent to clearance of the goods from the place of clearance, refunding the excess duty recovered by him at the time of clearance of the goods, a three judges bench of Hon ble Supreme Court has in the case of Addison Co Ltd. [2016 (339) ELT 177 (SC)], observed as follows: 14. We have considered the submissions made by the Counsel carefully and examined the material on record. The questions that arise for consideration in this case are whether the Assessee is entitled for a refund and whether there would be unjust enrichment if the said refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mencement of the Central Excises and Customs Laws (Amendment) Act, 1991, (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act :] [Provided further that] the limitation of [one year] shall not apply where any duty has been paid under protest. * * * * (2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation . - For the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) relevant date means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, Or (ii) if the goods are exported by land, the date on which such goods pass the frontier, Or (iii) if the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of section 28A, or sub-section (2) of section 28B of the Customs Act, 1962 (52 of 1962); (c) any income from investment of the amount credited to the Fund and any other monies received by the Central Government for the purposes of this Fund. SECTION 12D. Utilisation of the Fund. - (1) Any money credited to the Fund shall be utilised by the Central Government for the welfare of the consumers in accordance with such rules as that Government may make in this behalf. (2) The Central Government shall maintain or, if it thinks fit, specify the authority which shall maintain, proper and separate account and other relevant records in relation to the Fund in such form as may be prescribed in consultation with the Comptroller and Auditor-General of India . 16. In the instant case, the Assessee has admitted that the incidence of duty was originally passed on to the buyer. There is no material brought on record to show that the buyer to whom the incidence of duty was passed on by the Assessee did not pass it on to any other person. There is a statutory presumption under Section 12B of the Act that the duty has been passed on to the ultimate consumer. It is clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eak of the people being unjustly enriched . 17. Section 11B(2) of the Act contemplates that the amount of refund determined by the Authorities shall be credited to the fund. The Proviso to Section 11B(2) permits the refund to be paid to the applicant instead of being credited to the fund if such amount is relatable to the manufacturer, the buyer or any other such class of applicants as notified by the Central Government. 18. Mr. Venkatraman interpreted the said provision to mean that the only persons who were entitled for claim of refund are the manufacturer, his buyer and any other class of persons as notified by the Central Government. There is no dispute about the fact that no notification has been issued by the Central Government as contemplated in Clause (f) to proviso to Section 11B(2) of the Act. He contested that the claim for refund can be made only by the manufacturer or his buyer and any enquiry pertaining to unjust enrichment should be restricted only to the manufacturer and his buyer. The ultimate buyer/consumer will not figure in the scheme of Sections 11B, 12A, 12B and 12C of the Act. This submission was accepted by the High Court in the impugned judgment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is a mere pretence and not an honest exercise. By reading the Rules framed under Section 12D, it is pointed out, even a consumer, who has really borne the burden of tax and is in a position to establish that fact, is yet not entitled to apply for refund of the duty since the Rules do not provide for such a situation. The Rules contemplate only grants being made to Consumer Welfare Societies. Even in the matter of making grants, it is submitted, the Rules are so framed as to make it highly difficult for any consumer organization to get the grant. There is no provision in the Act, Shri Nariman submitted, to locate the person really entitled to refund and to make over the money to him. We expect a sensitive Government not to bluff but to hand back the amounts to those entitled thereto , intoned Shri Nariman. It is a colourable device - declaimed Shri Sorabjee - a dirty trick and a shabby thing . The reply of Shri Parasaran to this criticism runs thus : It illbecomes the manufacturers/Assessees to espouse the cause of consumers, when all the while they had been making a killing at their expense. No consumers organization had come forward to voice any grievance against the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners: It is pointed out that the manufacturer would have paid the duty at the place of removal or clearance of the said goods but the sale may have taken place elsewhere; if the purchaser wants to apply for refund - it is submitted - he has to go to the place where the duty has been paid by the manufacturer and apply there. It is also pointed out that purchasers may be spread all over India and it is not convenient or practicable for all of them to go to the place of removal of goods and apply for refund. True it is that there is this practical inconvenience but it must also be remembered that such claims will be filed only by purchasers of high-priced goods where the duty component is large and not by all and sundry/small purchasers. This practical inconvenience or hardship, as it is called, cannot be a ground for holding that the provisions introduced by the 1991 (Amendment) Act are a device or a ruse to retain the taxes collected illegally and to invalidate them on that ground - assuming that such an argument is permissible in the case of a taxing enactment made by Parliament. (See R.K. Garg [(1981) 4 SCC 675 : 1982 SCC (Tax) 30 : AIR 1981 SC 2138] and other de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atlal Industries Ltd. 1997 (89) ELT 247 (SC)] as constitutional. This decision has been referred by the Hon ble Apex Court in the case of Addisson Co referred above. 4.5 Section 12D creates a statutory presumption to the effect that the burden of the duty reflected on the invoice has been passed on to the consumer of the goods. It is also interesting to note that credit notes which form the basis of the refund claim filed are the documents which have no statutory recognition under any of the provision of the Central Excise Act, 1944. These documents have been used widely, under the principles of accounting for adjustment of the books of account. However these documents are not recognized as a mean for the refund of Central Excise Duty by the seller to the buyer of the goods. Further the seller is not having any authority to refund any excise duty the burden of which has been passed on by him to the buyer of goods. In case of the Mafatlal Industries ltd Addisson Co referred above Hon ble Supreme Court has after referring to the provisions of the Section 11 B, concluded that the purchaser/ buyer of the goods could have claimed the refund of any excess duty paid. It is se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are self-contained enactments providing for levy, assessment, recovery and refund of duties, imposed thereunder. Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasize in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court. (ii) . (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing such claims is not an irrelevant consideration. Where the petitioner-plaintiff has suffered no real loss or prejudice, having passed on the burden of tax or duty to another person, it would be unjust to allow or decree his claim since it is bound to prejudicially affect the public exchequer. In case of large claims, it may well result in financial chaos in the administration of the affairs of the State. (viii) . (ix) The amendments made and the provisions inserted by the Central Excises and Customs Law (Amendment) Act, 1991 in the Central Excises and Salt Act and Customs Act are constitutionally valid and are unexceptionable. (x) By virtue of sub-section (3) to Section 11B of the Central Excises and Salt Act, as amended by the aforesaid Amendment Act, and by virtue of the provisions contained in sub-section (3) of Section 27 of the Customs Act, 1962, as amended by the said Amendment Act, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactment. No suit for refund of duty is mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The respondent filed an application for refund of an amount of Rs. 2,00,827/- on 14-8-2002 on the ground that it had paid excess excise duty at the rate of 18.11 per cent instead of 9.20 per cent. The Assessee initially passed on the duty incidence to its customers. Later the Assessee returned the excess duty amount to its buyers which was evidenced by a certificate issued by the Chartered Accountant on 2-8-2002. The refund claim was rejected by the Deputy Commissioner of Central Excise, Kolhapur Division vide an order dated 24-9-2002 on the ground that the Assessee did not submit either the credit notes or the Chartered Accountant s certificate at the time of filing the refund application. Not satisfied with the genuineness of the documents the Deputy Commissioner rejected the refund claim. The Commissioner (Appeals), Central Excise, Pune allowed the appeal filed by the Assessee by taking note of the certificate issued by the Chartered Accountant and the credit notes dated 29-7-2002. The Appellate Authority accepted the Assessee s contentions and held that there was no reason to doubt the genuineness of the documents produced. The Appellate Authority allowed the appeal of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity has recorded a finding of fact that the CA certificate which was produced in support of the claim shows that the benefit has not been transferred to the customers mentioning not only the credit notes but also cheques issued to the customers. In this view of the matter, we see no reason to interfere. Appeal is therefore rejected. Hon ble Supreme Court has dismissed the appeal against this order by referring to the Chartered Accountant certificate which clearly contained the details of credit notes and the cheques issued. We do not find such details in the CA Certificate produced, hence it cannot be said that this CA Certificate establishes that the burden of the duty claimed as refund has not been passed on to the customers. Thus we do not find any merits in the submission made to remand the matter for consideration of the issue in light of the CA Certificate. 4.8 On the issue whether the Appellant could have filed the refund claim without the self assessment made by the appellant on the invoice determining the duty payable on the goods cleared by the appellant being modified by the appellate authority a larger bench of tribunal has in the case of Eurotex Industries a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver within that period. It was submitted that in the claim for refund the party could take up the contention that the Order of Assessment was not correct and could claim refund on that basis even without filing an Appeal. 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding: The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order. Flock India 10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor, the refund can be claimed under Section 27 itself whereas if assessment is changed by the Assistant Collector, refund cannot be claimed under Section 27 without challenging the assessment itself. In view of the circulars, it was submitted that same are binding on the revenue as per Apex Court decision in the case of Collector of Central Excise, Vadodara v. Dhiren Chemical Industries - 2002 (139) E.L.T. 3 (S.C.) and Arviva Industries (I) Ltd. v. U.O.I. - 2007 (209) E.L.T. 5 (S.C.) and therefore the refund claims which are filed in pursuance of these circulars cannot be rejected. We however find that the Board has issued a Circular No. 24/2004, dated 18-3-2004 vide F. No. 438/18/2003-Cus-IV, bringing to the notice of the field formations the Apex Court decision in the case of Flock India and other cases holding that a refund claim is not maintainable when the assessees do not challenge assessment order and directed them to follow the decision of the Supreme Court and since this circular was issued after 2003 when the Customs Manual was issued, the same will have precedence over earlier circulars and therefore it cannot be said that the Revenue has not followed its own circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment or borne by him, may make an application for refund of such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs within one year in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital. In any other case before the expiry of six months from the date of payment of duty and interest. He has to further satisfy that he has not passed on such liability to any other person. The limitation of one year or six months shall not apply where any duty and interest has been paid under protest. It is made clear by the second proviso to Section 27 that in case of refund becomes necessary as a consequence of judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year or six months shall commence from the date of such judgment, decree, order or direction. 36. Section 27 of the Customs Act as amended by Finance Act, 2011 provides that any person claiming refund of any duty or interest paid or borne by him, may make an application in such form and manner as may be prescribed for such refund to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appealable under the statute, and the party aggrieved did not choose to file an appeal. This Court held that it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The provisions of the Central Excise Act, 1944 came up for consideration. The Court has observed : 10. Coming to the question that is raised, there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing its order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Section 11 under the Excise Act, the claim for refund had to be filed within a period of six months. It was still held, in Flock (India) s case (supra), that in the absence of an appeal having been filed no refund claim could be made. 8. The words in pursuance of an order of assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an order of assessment to claim the refund. These words do not lead to the conclusion that without the order of assessment having been modified in appeal or reviewed a claim for refund can be maintained. (emphasis supplied) 41. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. 42. It was contended that no appeal lies against the order of self-assessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). 44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or reassessment in case the Assistant Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant period involved in the appeal i.e. July 2001 to March 2002. The Appellant s assessments for this period were provisional and these entries were finalized on 30-1-2003. The provisional assessment order was passed on 1-3-2002. The appellant has claimed that at the time of the said final assessment order dated 30-1-2003, it was not aware of the Notification No. 10/96-C.E. or the said Circular dated 1-32001 and as such, no claim thereunder was made by it till that time nor was any such claim so considered or decided in the said final assessment order. 10. On July 18, 2003, the appellant filed a refund claim for an amount of Rs. 28,73,120/- in respect of the duty paid on the said waste paper/broke during the period from July 2001 to March 2002. The said refund claim was filed under Section 11(B) of the Central Excise Act, 1944 (for short, referred to as the 1944 Act ) and within the statutory period of limitation. 4.10 In the present cases nothing has been produced before us to hold that the assessment orders made by the appellants have ever been modified by any authority in appellate proceedings. Appellants have argued that this was never the issue in the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. In the Grounds of Appeal before CESTAT, the Department has stated that The Commissioner (Appeals) erred in appreciating the fact that the assessee have issued the credit notes to their buyers wherein only the amount of CST VAT is shown separately and the duty element does not find mention at all. This indicates that the assessee has already passed on the duty element to the buyers and accordingly the doctrine of 'unjust enrichment is applicable. Therefore, the reliance by Assistant Commissioner on the Commissioner (Appeal)'s order, particularly when Order-In-Original is appealed against is not correct and hence the Order-In-Original Is not legal, not proper. 3. The assessee has not produced any contract or other document to evidence that the rate difference was due to some contract already existing before the sale of goods to the dealers.. Therefore, the credit notes which are devoid of any clarification on rate difference prove that the amount of credit given by the assessee to the dealer does not include any element of Central Excise Duty. The Order-In-Original did not have any findings in this aspect at all. Therefore the Order-In-Original of sanctioning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not on account of the decision rendered in the favour of appellant assessee. Thus we do not find any merits in the submissions made by the appellant assessee on this account. 4.11 Appellant assessee has challenged the appeals filed by the revenue on the ground that they are contrary to the litigation policy of the Government of India in terms of the amounts involved in the dispute. We take note of the submission made and also the fact that at the time when the said appeals were filed they were not barred as per the litigation policy. With the passage of the time the monetary limit, for filing the appeals have been enhanced. Revenue authorities were also directed to examine in respect of withdrawal of the appeals that are below the thresh hold level specified. In the present case revenue has not filed any application seeking withdrawal of these two appeals. In our view in absence of any such application seeking withdrawal of the appeal the appeal will have to be considered and decided on the merits. 4.12 Appellants have in their submissions admitted that certain refund claims filed by them are time barred as they were filed beyond the period of limitation as per Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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