2007 (12) TMI 328

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....bsp; During the period 24-11-98 to 30-11-98, the assessee had paid duty on its product betel nut powder @ 18% ad valorem oblivious of the issue of notification No. 35/98-C.E., dated 24-11-98 under which the rate of duty leviable  on  betel  nut  powder was  reduced  from   18% ad valorem to 15% ad valorem.   Immediately on coming to know of the revision in the rate of duty, the assessee had returned the excess duty collected to the dealers by issue of credit notes.   Therefore, the assessee had not retained the amount claimed as refund.   The Commissioner (Appeals) relied on a decision in favour of the assessee in the case of Addison & Co. v. C.C.E. reported in 2001 (129)....

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.....)], the activity of crushing betel nuts into smaller   pieces and sweetening  the same with essential/non-essential oils, menthol, sweetening agent etc., did not result in manufacture of a new and definite product having different character and use. Therefore, the product prepared and cleared by the respondents was not excisable and the collection of excise duty from them was ab initio unconstitutional. They were not liable to pay any duty and provisions of Section 11B did not apply to the refund claim for excess duty @ 3% paid for 7 days and unjust enrichment did not apply. It was argued that   the proceedings against the appellants should abate as they did not manufacture excisable goods. They also cited the foll....

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....the burden of duty.  It is seen that in Final Order No. 249/07 of the Bangalore Bench, the Tribunal followed the judgment of the Apex Court in the case of Mohd. Ekram Khan & Sons v. Commissioner of Trade Tax, UP reported in 2004 (006)- SCC-1083(S.C.), wherein the Apex Court had held that payment received through credit notes amounted to sale. Therefore, issue of credit notes also was a form of payment. The Tribunal decided that when the service provider had returned the service tax collected either by way of cheque or credit note, there cannot be any question of unjust enrichment. In view of this ratio the respondents are eligible for refund. I find that the appeal filed by the revenue relies on the ratio of Sangam Processors (Bhilwara....