TMI Blog2008 (10) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... finding on the claim of the assessee that the processing charges per unit quantity remained same throughout in the material period in respect of a given variety. The matter is therefore remanded to the original authority to allow the cash refund to Jansons subject to its claim being found correct. The appeal is allowed by remand. - E/667/2005 - 1215/2008 - Dated:- 24-10-2008 - Shri P. Karthikeyan, Member (T) Shri M. Saravanan, Consultant, for the Appellant. Shri N.J. Kumaresh, SDR, for the Respondent. [Order]. - M/s. Jansons manufactured processed cotton and man made fabrics on job work basis. They paid duty on the manufactured goods under Section 3A of the Central Excise Act (compounded levy). They paid duty on the ACP f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd. (supra), had held that "uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors." 2. The Commissioner (A) observed that in the case of Bhilwara Processors Ltd., v. CCE, Jaipur reported in [2004 (170) E.L.T. 472 (Tribunal) = 2004 (96) ECC 95 (Tri.)] the Tribunal had held that, "when the compounded levy was paid every month including gallery portion and simultaneously clearances were also made by the appellants, the claims are to be covered by the principles of unjust enrichment and the appellants were required to prove that the incidence of duty had not been passed on by them t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not passed on the same to its customers. The appellants had not enhanced the processing charges after the department levied duty including the gallery portion during 1-11-99 to 29-2-2000 and collected the same rate of charges even subsequent to February, 2000. Following the ratio of the Dollar Co. (supra), there was no unjust enrichment in allowing the refund of excess duty paid. 4. Heard both sides. 5. I have studied the case records and the submissions by both sides. The issue to be decided is if the bar of unjust enrichment would be attracted to refund of excess duty paid by the appellants during 1-11-99 to 29-2-2000 when it paid duty on ACP including the gallery portion under protest. The assessee's case is that it was a job w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er ACP and the assessee collects its job charges including profit along with duty. When this composite amount remained same before 1-11-99 and after 28-2-2000 and between 1-11-99 to 28-2-2000, it cannot be held that the assessee had passed on the excess duty amount to its customers during 1-11-99 to 28-2-2000. The case law relate to cases where the composite price remained same before and after the duty liability was changed. In the instant case the sale price remained constant not only before and after the duty liability changed but also when the initial lower liability was restored later. A reasonable inference in the facts of the case, I find, could be that the appellant charged less processing charges from its clients during 1-11-99 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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