AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2005 (9) TMI 585
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....er authority. (ii) The lower authority wrongly relied upon the observations of the Apex Court in U.O.I. v. Jain Spinners - 1992 (61) E.L.T. 321 (S.C.). The said case was on an entirely different footing and the Court had permitted withdrawal of money deposited with the Court. It was not encashment of Bank Guarantee. (iii) The lower authority failed to appreciate that the question of unjust enrichment was required to be examined only when the provisions of Section 11B of the Act were applicable. (iv) The Apex Court itself had distinguished the Jain Spinner's judgment in Oswal Agro Mill's case. The finding of the lower authority that encashment of Bank guarantee was as per direction of the Supreme Court is erroneous and contrary to facts. (v) The impugned order is contrary to the Tribunal judgment in Saheli Synthetic - 2001 (134) E.L.T. 738. (vi) Even otherwise the bar of unjust enrichment was not applicable, when the duty was paid subsequently as held in PKS Park Industries - 2004 (167) E.L.T. 422; Thandav Co-operative Sugar Mills - 2002 (145) E.L.T. 725; Punjab Beverages - 1999 (118) E.L.T. 506, East....
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....ble, being backed by the guarantee of a bank. In the event, however, unlikely, of the bank refusing to honour its guarantee it would be necessary for the Revenue or, where the bank guarantee is in favour of the Principal Administrative Officer of the Court, that officer to file a suit against the bank for the amount due upon the bank guarantee. The amount of the disputed tax or duty that is secured by a bank guarantee cannot, therefore, be held to be paid to the Revenue. There is no question of its refund, and Section 11B is not attracted. " 5. In this case, the appellants had furnished Bank Guarantees for fifty percent of the disputed amount with the Excise Authorities. Though the case was ultimately decided in favour of the appellants, the Bank Guarantees had already been encashed by the Revenue by treating the same as deposited in its favour, in view of the High Court's order. It was observed by the court that - "we find behaviour of the Excise Department highly improper. Bank Guarantees are furnished to secure interests of the parties till determination of matters pending before Court." The Court directed the revenue to re-pay the amount of Rs. 1,18,00,000/- to State Ban....
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....1992. 9. In the background of the case outlined above, there is no doubt that Revenue had succeeded in the case involving duty amounting to Rs. 10,79,62,512.62. Out of this an amount of Rs. 5,39,81,256.31 had been secured by way of Bank Guarantees which were held to be enforceable by the High Court. Therefore, the ratio of Oswal Agro Mills Ltd. case is not applicable in the instant case. The ratio will be applicable only when the Revenue fails and it is held that no amount is payable. 10. Apart from the above, the Supreme Court held in Mafatlal Industries v. U.O.I., 1997 (89) E.L.T. 247 (S.C.) that a claim for refund, whether made under the provision of the Act or in a suit or Writ Petition can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of duty or to the extent he has not so passed on, as the case may be. Whether the claim is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subje....
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.... being Easter Industries Ltd. v. CCE, Meerut 2003 (161) E.L.T. 1034 (Tri.-Del.) decided on 26-8-1999. In that case the rate of duty was enhanced by a notification dt. 15-12-1990. However the said notification came to the notice of the assessee as well as Revenue on 19-12-1990. The differential duty for the period 15-12-1990 to 18-12-1990 was paid subsequently in two installments and was later the subject matter of refund claim. The Tribunal held that only the burden of duty which was assessed and paid during the period 15-12-1990 to 18-12-1990 could be passed on by the appellants to their customers and presumption under Sec. 12B of the Act could be applied to the said duty only and not the enhanced duty which had come to notice of the assessee admittedly only on 19-12-1990. Other cases cited were decided following the ratio of this judgment. 15. The present case is entirely different. Before the appellants started disputing the levy in 1979 they were paying duty on the basis of prices declared by the merchant manufacturer. During the period they were clearing the fabrics, in terms of interim order after furnishing the bank guarantees, the incidence and likelihood of the levy ....