2001 (5) TMI 914

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....11B on the grounds of time bar and unjust enrichment. 2. The brief facts of the case are as under :- 3. The appellant company is engaged in the manufacture of Iron and Steel Re-rolled products falling under Chapter 72. They were paying duty under Section 3A. Originally vide Commissioner's letter dated 25-3-98 their Annual Capacity of Production was fixed at 6626.347 MT with monthly duty payment at Rs. 1,65,659/-. The Annual Capacity of Production was re-determined vide Commissioner's letter dated 16-11-1.2000 at 3227.990 MT with duty as Rs. 80,700/- per month. Again based on CEGAT directions dated 4-8-2000 the Commissioner vide letter dated 16-11-2000 refixed the Annual Capacity of Production with effect from 5-10-98 as 1235....

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....elied upon. The short question that arises for my consideration is in the given facts and circumstances of the case whether the impugned order is sustainable under law or not. 7. From the records I observe that the refund of excess duty paid arises in view of the refixation of annual capacity of Production by Commissioner on two occasions. The lower authority rejected the same as time barred and hit by unjust enrichment. Let me first examine the time bar aspect. Commissioner vide letter dated 25-3-98 originally fixed the annual capacity of production at 6626.37 MT. Aggrieved over this order the appellant company represented to Commissioner to reconsider his decision in view of the fact that their unit was only Batch Type and also RP....

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....to this view point of the lower authority. On perusal of clearance documents like invoices under Rule 52A or delivery challans I observe that the appellant had not collected separately any Excise Duty from the Customers. Invoices issued under Rule 52A - which is the basic document for the purpose of assessment under excise law do not show any excise duty collected from the customers. These invoices have been further supported by the commercial invoices wherein also no excise duty appears to have been collected from the customers. The lower authority while placing reliance on Section 12B to come to the above conclusion failed to note that contrary has been proved by the appellant that no duty was collected from the customers. Further to the ....