TaxTMI 
TaxTMI 
2011 (3) TMI 734
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....t Order-in-Original No. 77/98 dated 14-9-1998 involving 19 refund claims amounting to Rs. 10.22 crores. The original authority held that 13 out of the 19 claims were time-barred and in respect of the balance six, he held that refund was due but since the appellants had passed on the extra duty burden to the consumers, he ordered for crediting the amount to the Consumer Welfare Fund. On appeal, the lower appellate authority has upheld the Order-in-Original leading to this appeal by the appellant-assessee. 3. The other three appeals i.e., E/1235/2004 filed by the appellant-assessee and E/1211 & 1212/2004 filed by the department are against a combined Order-in-Appeal bearing Nos. 290 & 291/04 dated 18-6-2004, which was passed against O....
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....ary and the other is clearly redundant and therefore, the second appeal filed by the department requires to be dismissed on the ground of redundancy. The ground taken in the department's appeal is that the appellant-assessee has taken credit of Additional Duty of Customs paid on the input, namely, 'Jumbo Rolls' while paying duty on the 'cut and slitted films' and, therefore, when such films are held to be non-excisable, the credit itself is not permissible and, therefore, no amount can be credited to the Consumer Welfare Fund. Incidentally, this ground was not taken by the department before the lower appellate authority. 4. It has been inter alia submitted by Ms. Pushya Sitaraman, Sr. Adv. on behalf of the appellant-assessee as foll....
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....ates that the current balance sheet of the appellant-company shows that the impugned amount has been written off as not recoverable from the Government but earlier the amount was shown as 'Receivables'. She also prays that the Public Sector Unit is running at a loss and is lying closed and that the entire amount of refund amounting to about Rs. 50 crores should be sanctioned and paid to the appellants. 5. Shri T.H. Rao, learned SDR appearing for the department states that there is a finding by the authorities below that excise duty has been separately indicated in the gate passes and invoices issued by the appellant-assessee. This shows that they have been recovering the excise duty from their customers, though subsequendy it has be....
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....r for provisional assessment. As such, in respect of these time-barred claims, the appellant-assessees do not have a case in their favour and therefore we have no alternative but to uphold the impugned orders. 7. In respect of the aforementioned time-barred claims as well as other claims, we further find that according to the appellant-assessees own submissions, the price was determined according to BICP norms and regulated by the Government orders. As such, they had no flexibility to sell the goods at a different price or at a composite price inclusive of the excise duty. The excise gate passes and the invoices also show that they have been indicating the excise duty separately in addition to the government-regulated price and coll....
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....42) E.L.T. A.173 (S.C). 8. Further, when the assessee-appellants have paid duty through credit of Additional Duty of Customs paid on 'Jumbo Rolls' to which they become disentitled on the finished films becoming non-excisable, on that ground also, the appellants are not entitled to any refund. If they are allowed to avail ineligible credit and that credit amount is refunded to them, then that would amount to unjust enrichment. Moreover, refund of duty paid through credit can only be allowed by way of credit and hence the same cannot be credited to the Consumer Welfare Fund. In the Order-in-Original No. 3/2002, it is stated that out of the total refund amount of Rs. 39.57 crores only Rs. 9.15 crores was paid in cash and the balance ou....