TMI Blog2004 (3) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ds Limited are manufacturers of paper and paper boards falling under Chapter 48. Keeping in view of acute shortage of printing and writing paper, Government of India has issued a notification No. 108/81-C.E., dated 24-4-1981 according to which the new paper mills which commenced clearances of paper for the first time during the period from 1-4-1979 to 31-3-1984 were required to pay only 50% of duty applicable on such paper. The department contended that the five year period would reckoned from the date of first clearance viz., 19-8-1979 to 18-8-1984. The department did not extend the benefit of notification from 19-8-1984 to 8-11-1984. The assessee, on the other hand, held that the relevant date for computing the period of five years should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the duty separately and since the sale price of the goods remained the same, it was concluded that incidence of duty was not passed on to the consumer. Section 11B of Central Excise Act was amended by a Notification 30/91-C.E. (N.T.), dated 19-9-1991. It was contended that the Tribunal ought to have decided the issue according to the amendment but there was no finding given by the Tribunal. 3. Aggrieved against the final orders of the CEGAT, the revenue referred the case to the High Court contending that the Tribunal ought to have decided the issue according to the amended Section 11B of the Central Excise Act, 1944 (hereinafter referred as 'The Act'. There is no finding with regard to the unjust enrichment contemplated under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee and against the Revenue. 6. The admitted facts are M/s. I.TC. Bhadrachalam paper boards limited are the manufacturers of paper and paper boards falling under Chapter 48. The Government of India issued a Notification No. 108/81-C.E., dated 24-4-1981 according to which the new paper mills which commenced clearance of paper for the first time during the period from 1-4-1979 to 31-3-1984 were required to pay only 50 per cent of duty applicable on such paper. Subsequently a further clarification was issued in Notification No. 214 of 1984 that five years period should commence from the date of issue of notification. The assessee, who had paid the duty in full during the period from 19-8-1984 to 8-11-1984 filed a refund a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 20-9-1991 the Tribunal in its Final Order dated 12-9-1990 passed the refund order and the appeal filed before the Supreme Court was also dismissed. The filing of application for refund was only consequential to the orders of the Tribunal and therefore the Assistant Collector of Customs and the Collector of Customs committed error in applying the provisions of amended Section 11B of the Central Excise Act by casting the burden of proof on the assessee to prove that the incidence of such duty had not been passed on to any other person. In the facts and circumstances of the case, the Notification No. 30 of 1991, dated 19-9-1991 to Section 11B has no application to the facts of this case, as the said notification is only prospective bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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