Shalimar Textile Mfg. Pvt. Limited vs Union Of India And Others on 16 July, 1986
Appearance
Shri V.V. Hariharan, JCDR, for the appellant
Shri Shankararaman, Adv., for the respondent
CORAM
Ms. JYOTI BALASUNDARAM, Vice President
Dr. CHITTARANJAN SATAPATHY, Technical Member
Date of hearing : 20.08.09
Date of decision : 20.08.09
Final ORDER No._____________
Per: Jyoti Balasundaram,
The assessees herein cleared bulk quantities of Scented Supari on payment of duty under protest to M/s. A.R.S.& Co., Pudukottai and M/s. Abdul Razak, Pudukottai, who are registered dealers and registered owners of the brand name Nizam. M/s. S.A. Safiullah & Co. cleared the supari in bulk to the job workers for packing the same into unit containers; job workers took credit of the duty paid on the supari and after packing cleared the same back to M/s. S.A. Safiullah & Co. on payment of duty under protest. Thereafter, the dealer sold the supari to various customers. The dealers filed a writ petition in te Honble High Court of Madras for issue of declaration that the scented supari was not excisable; vide order dated 29.06.99, the High court accepted the contention of the petitioners but however added that the consequential remedy of refund of excise duty paid on supari was subject to the test of unjust enrichment and remanded the matter for decision on this aspect. Subsequent to the decision of the Honble High Court, the dealers filed the claim on 24.09.99 for refund of duty of Rs. 1,06,85,548/- borne by them in trading supari during the period 25.05.94 to 14.03.95. A Show Cause Notice proposing rejection of their claim both on the ground of limitation and on the ground of unjust enrichment issued to the dealers; the notice was adjudicated by the Assistant Commissioner holding against the claim both on the ground of limitation as well as on the ground of unjust enrichment. The assessees carried the matter to the Commissioner (Appeals) who allowed the appeal by way of remand to the lower appellate authority to consider only the question of unjust enrichment. As far as the time bar is concerned, he hold that when recovery of duty is illegal and without jurisdiction of law, no limitation is applicable in the case of claim for refund, following the decision of the Honble High Court of Bombay in the case of M/s. Shalimar Textiles Vs. UOI 1986 (25)ELT 625; he had considered the evidence produced before him by the dealer which was not produced before the adjudicating authority and held that there was no unjust enrichment. He, therefore, allowed the appeal of the dealers with consequential relief. The Revenue is in appeal against the said order.