Cce vs Siv Industries on 13 February, 2004
In the case of Easter Industries Ltd. v. CCE, 1999 (35) RLT 696 the Hon'ble Tribunal has held that the presumptions made in Section 12B can be only to the extent of the duty assessed and paid at the time of clearance of the goods and not of duties subsequently collected unless there is some positive evidence to the effect produced by the department. In the present case there is no finding that the appellant has realized the customs duties from their customers. In the present case the appellant filed an appeal against the order of the Assistant Commissioner and immediately after the appeal was allowed by the Commissioner (Appeals) in their favour a refund claim was filed. It is a settled position of law that once an appellant authority has allowed the appeal with consequential relief the question of time bar does not arise. This view has been echoed in the case of Omega Allays Castings Pvt. Ltd., 2000 (121) ELT 336. The above view is further strengthened by the fact that the appellant had paid the duty under protest. With regard to payment of duty to the tune of Rs. 88,26,360 on 26.2.94 the appellant had clearly mentioned that duty is paid under protest. The goods were cleared between 23.11.93 to 9.3.94. They made the payment of 88,26,360 since the department insisted that unless they make payment of the same, they will not be allowed the clearance of VSF. They cleared 1510.45 MTs of VSF prior to 26.2.94 and from 26.2.94 to 9.3.94 they cleared 528.317 MTs of VSF manufactured out of EOU unit and in stock as on the date of de-bonding that is 15.11.1993. The company has paid the amount of Rs. 88,28,560 being the differential duty calculated at the rate of US$ 1.1 per kg. of fibre on the stock as on 15.11.1993 vide TR6 challan. In respect of clearances effect from 26.2.1994 to 9.3.1994 the company has produced the relevant gate passes evidencing the clearance which shows only excise duty both BED and AED has been paid and no customs duty has been calculated. They have produced all the copies of the gate passes and also copy of the PLA account showing the debit of BED and AED in respect of all the clearances. This shows that the company has not collected any customs duty. Once the duty is paid under protest the question of limitation may not arise. They have produced details that they are selling their goods only at a loss. The Tribunal in the case of U.P. Twiga Fiber Glass Ltd., 2000 (116) ELT 537 (T) has held that there is no question of realization of the Central Excise duty from the customers. Therefore, applying the above judgment, there is no question of unjust enrichment in this case since the duty was paid after the 3/4th clearances of the goods took place. Similar view was expressed by the Hon'ble Tribunal in the case Motorola India Ltd., 1999 (32) RLT 932 that the assumption as to unjust enrichment under Section 12B does not arise when the goods are sold at a price lower than that on which the duty was paid. The lower authority has gone by the ordinary presumption that the burden of duty has been passed on to the buyers, even though the goods were sold at less than cost price and the duty was paid after the clearance of goods took place. The learned counsel drew my attention to the fact that Rs. 88 lakhs towards customs duty was paid much after the clearance of the goods. There were no supplementary bills raised to the buyers and the selling price of these products remained the same. An amount of Rs. 15 has been paid under GP1 No. 104 dated 23.11.93 to 27.2.94. An amount of Rs. 35,907 was paid vide TRS challan No. 17/98 & 18/98 dated 15.11.93. For Rs. 16,19,602 the lower authority has rejected the refund claim since the appellant has not produced any duty paid document for the proof of payment of duty. The refund was sought on the ground that they had paid higher rate of duty than what is payable. I find from the records that the duty element has been passed on to the customers pertaining to this amount. Hence, the appellant are not eligible for refund of the amount of Rs. 16,19,617 paid. For the rest of the amount of Rs. 88,26,360 after the detailed discussion above, I hold that these are not hit by time bar and unjust enrichment. So they are entitled for the refund of Rs. 88,26,360.