9911796707
TMI Blog2025 (2) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... the case are as under: - (i) The Respondent is carrying on business of manufacturing and trading of various ayurvedic products and are inter alia importing fruit juices from Nepal which are classifiable under the Tariff Item 2202 9020. Additionally, the Respondent is also importing tooth powder by the name of "Lal Dant Manjan" which is classifiable under the Tariff Item 3306 1010. The said goods are imported from Nepal through the Land Customs Station at Raxaul. The products manufactured as well as imported by the Respondent are covered under the Notification No. 01/2011-CE (2% without CENVAT Credit) as well as Notification No. 02/2011-CE (6% with CENVAT Credit). (ii) In terms of the decision rendered by the Hon'ble Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) of Customs, G.S.T. and Central Excise, Patna vide the impugned order dated 03.10.2018 granted refund of the excess CVD paid by the Respondent for the relevant period by holding that the unjust enrichment cause is not applicable in the instant case as the two major conditions i.e. (i) amount being reflected in the Balance Sheet as receivable and (ii) submission of CA Certificate, stood fulfilled. In furtherance to the impugned OIA, the refund of Rs. 1,04,47,836/- was sanctioned to the Respondent on 21.05.2019. Further, interest on delayed sanction of refund was also allowed to the Respondent vide an Order-In-Original bearing no. 05-Cus/Refund/Rxl/2020 dated 17.12.2020. 5. Aggrieved from the said order, the Revenue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88 (Tri. - Mum.)]. 7.1. The Ld. Counsel for the Respondent also submitted that the Hon'ble Delhi High Court, in the case of M/s. Hero Motorcorp Ltd. v. Commissioner of Customs (Import & General) [2014 (302) E.L.T. 501 (Del.)], has distinguished the decision of the Hon'ble Apex Court in the case of M/s. Allied Photographics India Ltd. (supra). 8. Heard the parties and considered their submissions. 9. We find that in this case, the short issue involved in the matter is as to whether the respondent has passed the bar of unjust enrichment of excess duty paid by them which was sought to be refunded or not, when the goods were sold by the respondent on M.R.P. basis, the amount of excess duty paid by the respondent has been shown as "receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . second fortnight of February 2003 and first fortnight of March 2003 was paid by them only on 24-3-2003 by making one time entry in their Cenvat credit account, against a remark "duty paid under protest". The said debit according to the appellant was made in pursuance to the visit of the Dy. Commissioner in their factory and on his insistence. The question which arises is that when the appellant had paid the said amount of Rs. 8,132/- for the past clearance under protest, can it be said that the subsequent clearances were cleared on payment of duty by the assessee without any reservations and the same were voluntary payments. The entire process of payment of duty started with the appellants lodging a protest. This fact, in my views, is suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation would be in applicable. 8. As regards the Revenue's appeal in respect of unjust enrichment, I find that the appellants were manufacturing drinking water as a franchisees of M/s. Dhariwal Industries Ltd. The goods attracted to duty in terms of Section 4A of Central Excise duty on the basis of MRP, which is being fixed by M/s. Dhariwal Industries Ltd. and the appellants are not free to challenge or alter the MRP so fixed. MRP of the product during the period when normal rate of duty was paid and after 24-8-04 remained the same. It has also been noticed by the appellate authority that some of the other franchisee also availed exemption under Notification No. 9/02 dt. 1-3-2002 but the MRP of all of them remained unchanged during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting system and is presumed to be a part of the final cost of the product. However, it is seen that in the instant case, duty is not attracted on the basis of value of the final product. Duty is based upon MRP of the final product, which remained constant irrespective of the fact of payment of higher duty. As such, when the product is leviable to duty in terms of MRP, it cannot be concluded that the value of the final product fluctuated on account of payment of differential duty. Further the appellants contention that MRP in respect of other franchise holders, who were availing exemption remained the same also supports their stand that duty burden was born by the appellant from their own pocket, and was not passed on to the customers. The R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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