2010 (1) TMI 1019

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....e coal fired boilers. The Department took the stand that the said "Cinders" is classifiable under Chapter sub-heading No. 2621.00 to schedule 2 of the Central Excise Tariff Act, 1985 and duty was payable on the same. Thereafter, show-cause notices were issued, orders were passed and the matter came to be finally decided by the judgment of the Hon'ble High Court of Mumbai dated 25-1-2002 holding that "cinders" is not excisable. In the meanwhile, the assessee had started paying duty on "cinders" under protest from 1998 and onwards. After the matter was finally decided, the appellants filed a refund claim for Rs. 24,43,877/- on 26-6-2002 being the duty paid under protest on clearances of cinders during the period from May, 1998 to January, 200....

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....he assessee submitted that Assistant Commissioner took contradictory stand in the same order. On one hand, he sanctioned the refund of Rs. 91,234/- paid in 1999 under TR-6 Challan and refused to consider sanction of refund of the balance amount on the ground that the assessee had collected the amount from the customers. He also produced sample invoices. He submitted that the lower authorities have taken the view that upto September, 2001, assessee was clearing "cinders" to various parties under Central Excise invoices paying duty under protest. Stamp to this effect was affixed by them from May, 1998 onwards and the excise element has been separately shown and collected. With effect from 16-9-2001, the assessee started to affix a new rubber ....

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..... In his rejoinder, the learned Advocate submitted that the assessee was not required to prove that they have not charged the Excise duty and further submitted that price of "cinders" would not have remained same from 1998 onwards till 2002. Therefore, it cannot be said that the appellants have collected Excise duty subsequent to 16-9-2001. 6.  We have considered the submissions made by both the sides. The first contention put forth was that having sanctioned the amount paid under TR-6 Challan, the decision to credit the balance amount to Consumer Welfare Fund is not logical and contradictory. We do not find this to be correct. In the case of amount which has been credited to the Consumer Welfare Fund, it has been done so because th....