Customs, Excise and Gold Tribunal - Bangalore
Hyderabad Deccan Cigarette Factory P. ... vs C.C.E. on 9 January, 2004
Equivalent citations: 2004(166)ELT41(TRI-BANG)
ORDER C. Satapathy, Member (T)
1. These four connected appeals are taken up for hearing together.
2. Ms. Maithili, learned Advocate for the appellants states that Appeal Nos. E/39/2002 and E/92/2002 have been filed by the Job Workers against the dismissal of refunds and Appeal Nos. E/63 & 64/2002 have been filed by M/s. VST Industries Limited, who have received the impugned goods from the Job Workers. She fairly concedes that the appeals filed by the Job Workers viz. E/39/2002 and E/92/2002 are liable to be dismissed in the event of the appeals filed by M/s. VST Industries Limited are allowed since the refunds relate to the same amounts which were initially paid under protest by the Job Workers and were subsequently reimbursed by M/s. VST Industries Limited to the Job Workers.
3. Shri L. Narasimha Murthy, learned JDR appearing for the Department agrees to this proposition and also confirms that the issue remaining to be decided relates to passing on of the duty burden and the question of unjust enrichment. He submits that the Assistant Commissioner has to make a determination as to whether M/s. VST Industries Limited have in turn passed on the duty burden to their customers.
4. Ms. Maithili submits in this regard that the additional duty was paid by the Job Workers on 3-5-1988, much after the clearance of the impugned goods during the period 1981-1984, and the reimbursement was made by M/s. VST Industries Limited to the Job Workers at a later point of time. As such, she claims that there was no question of passing on of the duty burden by the appellants M/s. VST Industries to their customers. She cites the earlier decision of the Tribunal in the case of Thandava Co-op. Sugars Limited v. CCE, Hyderabad, reported in 2002 (145) E.L.T. 725 (T) = 2002 (52) RLT 814, to the effect that in the case of amounts deposited subsequent to clearance of goods, bar of unjust enrichment cannot be applied. She also cites the decision of the Apex Court in the case of National Winder v. Commissioner of Central Excise, Allahabad, reported in 2003 (154) E.L.T. 350 (S.C.), holding that if duty is paid by a manufacturer under protest, then the limitation of six months will not apply even to a claim for refund by the purchaser. She, however, agrees, on being pointed out by the learned DR, that the said decision of the Apex Court also requires that even in a claim made by the purchaser, he would have to satisfy the department that the duty burden has not been further passed on. At the same time, she submits that since the excess duty amount was paid much after the clearance period, it is evident that the duty burden was not further passed on to the customers by M/s. VST Industries Limited.
5. Considering the submissions as above, we dismiss the Appeal Nos. E/39/2002 and E/92/2002 filed by the Job Workers viz. Hyderabad Deccan Cigarette Factory Pvt. Ltd., Hyderabad and Venus Tobacco Co. Pvt. Ltd., Hyderabad, as not maintainable since the Appeals have been filed for refund of the same amounts by the principal manufacturer M/s. VST Industries Limited. We are also of the view that since the impugned duty amounts in question have been paid under protest much after the clearance period and have been reimbursed by the appellant M/s. VST Industries Limited subsequently to their Job Workers, the bar of unjust enrichment cannot apply in this case. Accordingly, we allow the Appeal Nos. E/63/2002 and E/64/2002 filed by M/s. VST Industries Limited with consequential benefits.