Customs, Excise and Gold Tribunal - Mumbai
Plas Pack Industries, Chirag ... vs Commissioner Of Customs And Central ... on 10 February, 2004
Equivalent citations: 2004(167)ELT422(TRI-MUMBAI)
ORDER Jyoti Balasundaram, Member (J)
1. The above appeals arising out of different orders of the Commissioner (Appeals), involve a common issue and are heard together and disposed of by this common order.
2. The appellants herein are engaged in the manufacture of HDPE tapes and fabrics and paid additional duty under the Additional Duties of Excise (Textile and Textile Article) Act, 1978 under Chapter 54 during the period April 1992 to October, 1992 through credit of basic duty which was objected to by the department; thereafter the assessees paid additional duty subsequent to the period of clearance of the goods by debiting PLA and then claimed refund of duty paid by PLA debit. The adjudicating authority sanctioned refund claims within the period of limitation and also held that the bar of unjust enrichment would not apply as the goods were captively consumed, applying the riatio of the Hon'ble Bombay High Court and Madras High Court in the cases of Solar Pesticides Pvt. Ltd. v. Union of India 1992 (57) ELT 201 (Bom) and Indo-Swiss Synthetic Gem Mfg. Co. Ltd V. CC 1992 (59) ELT 345 (Mad). The Revenue filed appeals before the Commissioner (Appeals) who held that the assessees failed to rebut the presumption in Section 12B of the Central Excise Act by establishing that they had not passed on the duty burden to their customers (purchasers of final products) and allowed the appeals of the Revenue; hence these appeals.
3. On hearing both sides we find that the issue in dispute is no longer res-integra, having been settled by the Tribunal's order in the case of Gwalior Oil Milk v. CCE, Bhopal 2002 (52) RLT 648, holding that the presumption under Section 12B of the Central Excise Act that incidence of duty has been passed on to the buyer will not be attracted, when duty is paid subsequent to clearance. The Tribunal has relied upon earner orders in the case of Punjab Beverages Pvt. Ltd. v. CCE, Chandigarh 2000 (37) RLT 469 and Easter Industries v. CCE 1999 (35) RLT 696. Following the ratio of the above orders we hold that the appellants are eligible to refund, set aside the impugned order and allow the appeals.