TaxTMI 
TaxTMI 
2014 (11) TMI 705
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....pellant in respect of their cement plant at Chanderia at Rajasthan claimed the above exemption for the period from March, 1987 to March, 1990. Since during this period, the department had not extended the benefit of this exemption, they had paid full duty under protest but they filed from time to time, a total of 13 refund claims for an amount of Rs. 9,70,25,847/-. The refund claim for the period March, 1987 to March, 1988 were rejected by the Assistant Commissioner, Central Excise Division, Udaipur vide order-in-original dated 10.09.87 holding that the appellant are not eligible for exemption notification no.36/87-CE. On appeal being filed to the Commissioner (Appeals) against the Assistant Commissioners order, the Commissioner (Appeals) vide order-in-appeal dated 7.10.88 set aside the Assistant Commissioner's order and ordered for de novo adjudication for examining the issue of exemption notification after verification of the factory premises. The department filed an appeal before the Tribunal against the Commissioner (Appeals)'s order and the Tribunal vide Final Order dt. 05.10.89 dismissed the Department's appeal. Meanwhile, the appellant also filed a civil writ petition befor....
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.... matter to the original adjudicating authority to decide the matter afresh in the light of the Hon'ble Supreme Courts order dated 25.01.2007 after examining the principle of unjust enrichment. The Supreme Courts order dated 25.01.2007 has been passed in respect of an appeal filed by the Revenue against the Tribunals Final Order dated 5.12.2002. In this judgement, the Hon'ble Supreme Court held that the principle of unjust enrichment would be applicable even if the duty has been paid under protest. Though the refund has been paid to the appellant, on account of the Department having challenged the refund, a protective demand of Rs. 9,69,12,799/- has been issued to the appellant vide show cause notice dated 8.4.2004. In pursuance of the Apex Courts order dated 25.01.2007 by which the Apex Court had remanded the refund matter to the department, the matter was adjudicated by the Commissioner vide order-in-original no.23-24/2013/CEX/JPR-II dated 30.04.2013 by which the Commissioner held that the refund claim of Rs. 9,69,12,799/- was hit by the bar of unjust enrichment in terms of Section 11 B and accordingly has been erroneously granted to the appellant and accordingly, he ordered i....
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....g standards issued by it, that according to this method, it is presumed that costs incurred first in point of time will be recovered first, that the appellant had first incurred the cost of raw materials, labour and manufacturing expenses and overheads for manufacture of cement and excise duty is the last of the components of price, that if at all, a presumption can be made as to which of the components of cost is first recovered, it has to be presumed that the manufacturer will first recover the costs incurred first on the basis of the FIFO principle and the duty liability arising at a later point of time of clearing the goods from the factory will be recovered only after it has recovered the entire manufacturing expenses and costs, which had been incurred earlier, that as the company has not even been able to recover the full cost of production (exclusive of Excise Duty) and has incurred huge losses on that account, there is no question of it recovering Excise Duty which has been incurred at a later point of time, that the Apex Court in the case of Sinkhai Synthetics & Chemicals Pvt. Ltd. Vs. CCE 2002(143) ELT-17(SC) has held that in the cases of provisional assessment, the bar o....
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.... incidence of that duty has been passed on to the customers, that the Tribunal in the case of CCE, Salem Vs. Hindustan Photo Films Mfg. Co. Ltd. reported in 2011 (268) ELT 529 has held that when the invoice was showing the duty separately from the price and both were collected from the customers, it has to be presumed that the duty burden was passed on to the customers and it is immaterial that sales realization was less than the cost, that in this case the assessments were not provisional but the payment of duty was under protest, that the appellants plea that when the payment of duty under protest, the principle of unjust enrichment would not apply, is totally incorrect in view of the judgement dated 25.1.2007 of the Apex Court in this very case remanding the matter for de novo decision after ascertaining as to whether the incidence of duty whose refund has been sought, was passed on to the customers, that in terms of the Apex Courts directions this aspect has to be factually adjudicated, that just because as per the report of the Assistant Director (Cost), the appellant during the period of dispute were not able to realize the cost of production of the goods, it cannot be conc....
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....ar 1989-90, the sale value was higher than the total costs including the excise duty and a surplus of Rs. 5.14 lacs are left with the unit, and thus, considering the year 1989-90 as a separate period, the unit has grossly realized excise amount in totality in that year. The report further observes that as the unit started production on commercial basis in Jan.1987 and the capacity utilization was less in first two years, while the operating and fixed costs were comparatively higher, and that the unit during first two financial year i.e. 1986-87 and 1988-89 suffered loss, but if a block year period of four accounting years from 1986-87 to 1989-90 are taken into consideration, the unit has suffered a cumulative loss of Rs. 2714.16 lacs without considering any excise duty, refund amount. The report also observes that in case of levy cement sales, where the prices are fixed by the Government, the Appellant throughout during 1986-87 to 1988-89 period have shown basic price and excise duty separately in the invoices and besides this, in case of non-levy sales also, in a number of cases, the basic price and excise duty has been shown separately. 5.1 On the basis of the above repor....