Custom, Excise & Service Tax Tribunal
M/S. Mak Controls And Systems (P) Ltd vs Commissioner Of Central Excise, ... on 20 January, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. E/506/2001
(Arising out of Order-in-Appeal No. 6/2001 (CBE) (GVN) dated 22.1.2001 passed by the Commissioner of Central Excise (Appeals), Tiruchy)
For approval and signature:
Honble Smt. Jyoti Balasundaram, Vice President
Honble Shri P. Karthikeyan, Member (Technical)
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. Mak Controls and Systems (P) Ltd. Appellants
Vs.
Commissioner of Central Excise, Coimbatore Respondent
Appearance Shri G. Natarajan, Advocate for the Appellants Shri V.V. Hariharan, Jt. CDR, for the Respondent CORAM Honble Smt. Jyoti Balasundaram, Vice-President Honble Shri P. Karthikeyan, Member (T) Date of Hearing: 20.01.2009 Date of Decision: 20.01.2009 Final Order No. ____________ Per Jyoti Balasundaram The claim for refund of duty of Rs.58,72,735.28 on the ground that the goods on which the above amount of duty was paid on Ground Power Units manufactured by them were accepted by the Tribunal to fall for classification under CET sub-heading 8803.00 as parts of aircrafts, attracting nil rate of duty, has been rejected by the authorities below on the ground of time-bar, rejecting the assessees contention for payment of duty under protest and on the ground that the grant of refund would result in unjust enrichment.
2. We have heard both sides. We find that the claim for classification under CET sub-heading 8803.00 was not accepted by the Revenue and a show-cause notice was issued for classification under CET sub-heading 8502.00 attracting appropriate rate of duty; the notice was adjudicated vide order dated 9.12.1994 of the Commissioner, confirming the demand; the Tribunal set aside the order of the Commissioner. The payment of duty until the passing of the order by the Tribunal is to be treated as payment of duty under protest, as challenge to the duty demand by way of appeal to the Tribunal is itself a protest, in the light of the Tribunals decision in Flash Labs Ltd. Vs. CCE, New Delhi 1996 (88) ELT 782 and further in the light of the Tribunals order in Southern Refineries Ltd. Vs. CCE, Trivandrum 2006 (199) ELT 334, wherein it has been held that the procedure prescribed under Rule 233B of the erstwhile Central Excise Rules, 1944 for payment of duty under protest is merely directory and not mandatory. [In the present case the assessees had endorsed certain invoices of duty paid under protest]. We therefore accept the plea of the appellants that the claim of refund is not barred by limitation. As regards the second ground of rejection of refund, the lower authorities have relied upon the fact that duty element was shown separately in the invoice and paid by the assessees while effecting clearance from the factory, that the contract price was split up into assessable value and excise duty and charged separately in the invoices which would establish that the excise duty had been collected from the buyers of the appellants. However, the appellants have succeeded in satisfying us that the composite price inclusive of all the duties shows that price includes the duty payable and have also drawn our attention to letters written by the customers affirming that they had not paid any excise duty on the purchase of the goods in question from the appellants. In the light of the orders of the Tribunal in CIMMCO Ltd. Vs. CCE, Jaipur 1999 (107) ELT 246, Himat Singka Seide Ltd. Vs. Commissioner of Customs, Bangalore 2005 (191) ELT 885 and the judgment of the Honble Calcutta High Court in CCE, Calcutta Vs. Panihati Rubber Ltd. 2004 (172) ELT 310 (Cal.), we accept the submission of the appellants that they had not passed on the incidence of duty to their buyers who were made aware of the non-dutiability of the goods. We therefore hold that the claim is not hit by the bar of unjust enrichment.
3. In the result we set aside the impugned order and allow the appeal with consequential relief to the appellants in accordance with law.
(Dictated and pronounced in open court)
(P. KARTHIKEYAN) (JYOTI BALASUNDARAM)
Member (T) Vice President
Rex
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