TMI Blog2009 (3) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... rried the endorsement ‘excise duty paid under protest not collectable/recoverable from customers - original authority erred in holding that any part of the amount claimed attracted the vice of unjust enrichment - appellants are eligible for interest for the period of delay in sanction of refund in terms of Section 11B of the Central Excise Act, 1944 - E/1158-1159/2001 - 320-321/2009 - Dated:- 26-3-2009 - Ms. Jyoti Balasundaram, Vice-President and Shri P. Karthikeyan, Member (T) Shri M.R. Diwakar, Authorized Representative, for the Appellant. Shri M.K.A.K. Mohiddin, JDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)].- M/s. TI Diamond Chain Ltd., Ambattur (TIDC) packed duty paid chain, connecting links and boug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. E/1158/2001 2. In appeal No. E/1158/2001, TIDC has assailed the impugned order and challenges sanctioning and crediting of Rs. 12,07,776/- and Rs. 21,329/- to Consumer Welfare Fund and rejecting the claim for refund of Rs. 3,55,800/-. They pray for refund of these amounts along with applicable interest u/s 11BB of the Central Excise Act '44. The following grounds are raised: (i) Rs. 12,07,776/- The impugned order accepted the decision that the wholesale prices of kits of various models of two wheelers before and after the appellants had registered as an assessee manufacturing diamond kits had remained the same. The authorities failed to appreciate that the amount in question accounted for items of admissible expendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orized representative submitted a certificate dated 21-10-2008 of Venkat Rangaa, Chartered Accountants certifying that TIDC had paid an amount of Rs. 12,29,105/- towards central excise duty under protest for clearance of diamond kits during 26-9-1998 and 30-8-99; had not charged or realized the same from any other person and that the same was kept in 'Excise Duty Recoverable Account' with Account Code No.702.99.999.241022.599999.999.999. We have also heard the learned JDR for the Revenue. 4. We have carefully considered the case records and the submissions by both sides. We find that the original authority noted that the price of diamond kits before and after introduction of central excise duty remained the same and it was incorrect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties wrongly held that TIDC had collected the impugned amount as excise duty from its buyers. In view of the evidence advanced by the appellants, we hold that the original authority erred in holding that any part of the amount claimed attracted the vice of unjust enrichment. 5. A total amount of Rs. 12,07,776/- was found to have been collected in excess of the value on which TIDC had paid duty on sale of the kits involved. The impugned order does not give any finding on the submissions of the appellants before him. We also find that the Chartered Accountants' certificate furnished before us certified that the impugned claim for Rs. 12,29,105/- relates to excise duty paid by the appellants without recovering the same from its customers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for sale of such goods, they had collected an additional Rs. 14.90 which comprised the freight of Rs 1.98 when incurred on transport after clearance from the depots and Rs. 12.98 being additional discount both not included in the assessable value. Even if this part of the value is held liable to duty, the entire amount cannot be treated as excise duty realized in such cases. We note that the Assistant Commissioner had not found that the sale price in such cases constituted the normal price of diamond kits. Moreover, the impugned order does not deal with the arguments of TIDC in this regard but upholds the decision of the Assistant Commissioner without any independent finding. The invoices showed the impugned amount as part of the price an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 233B of Central Excise Rules. (iv) Copy of letter dated 5-11-1998. This letter intimated the jurisdictional Assistant Commissioner that the appellants were in possession of invoices issued under Rule 52A during the relevant period, sale invoices issued from the depots and the PLA/RG23A Part-II. 9.1 We find that under various correspondences entered into with the appellants the jurisdictional Range Superintendent and the Divisional Officer sought information in installments over a period of about a year, before finalization and sanction of the claim for Rs. 1,25,05,659/-. We find that on receipt of the refund claim in October 1999 the authorities should have examined the records furnished and intimated the further documents and r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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