2016 (4) TMI 727

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....uash the proceedings of the 3rd respondent dated 21.01.2003. 2. W.P.No.13367 of 2003 has been filed by the petitioner to issue a writ of certiorarified mandamus to call for the records of the 3rd respondent herein in Final Order dated 12.07.2002 and to quash the same and direct the 1st respondent herein to restore to the petitioner a sum of Rs. 41,58,566/- being amounts paid under protest between the period 01.10.1995 and 31.08.1999. 3. According to the petitioner, they are engaged in the business of manufacture of sale of Drip Irrigation System falling under Chapter 8424.10 of the Central Excise Tariff Act, 1944 and was exempted by notification No.56/95 dated 16.03.1995. As the Drip Irrigation System as a whole was exempted from paym....

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....s paid by the petitioner out of their own pocket by debiting the PLA account required to be maintained under the Central Excise Rules and this includes a sum of Rs. 10,45,085/- paid by the petitioner. The said sum of Rs. 10,45,085/- was paid subsequent to the clearance of goods and paid out of their own pock and therefore, the provisions of unjust enrichment would not apply to the entire amount of Rs. 41,58,566/-. On receipt of the order of the 3rd respondent dated 30.07.1999, the petitioner filed an application claiming refund of excise duty of Rs. 41,58,566/- paid between October 1995 and August 1999 by debiting the PLA Account. By show cause notice dated 28.04.2000, the 1st respondent proposed to disallow the claim of refund made by the ....

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....was rendered on the basis of various invoices produced by the petitioner for the period from 01.10.1995 to 31.08.1999. It is clear that the petitioner had not passed on the incidence of duty paid under protest on the plastic pipes/tubes to the customs. 5. The learned counsel for the petitioner, in support of his contentions relied upon the following judgments: (i) 2005 (183) E.L.T. 225 (S.C.) [SACI Allied Products Ltd. Vs. Commissioner of C.Ex., Meerut] wherein the Hon'ble Supreme Court held as follows: "17.Thus according to the appellate Tribunal, since the dealers in Uttar Pradesh who purchase the goods from Syndent, and independent dealers in other parts of the country to whom, the appellants directly sold the go....

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....e, the argument that the petitioner paid the duty without protest is rejected. In respect of unjust enrichment, the facts reveal that the price was a composite one fixed by the Ministry of Agriculture. The factual position is that the duty has been absorbed by the assessee and it was submitted that the Chartered Accountant's Certificate dated 08.07.2002 and the profit and loss account, also confirm that the duty paid on the impugned goods had been absorbed by the assessee and had been shown as expenditure in profit and loss account and had been passed on to the customer. 4. In the foregoing conclusions, we find no error in the order passed by the Customs, Excise and Service Tax Appellate Tribunal and requires no interference. H....

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....rectly interpreted the relevant provisions of the Customs Act and, in our opinion, the principle of unjust enrichment incorporated in Section 27 of the Act would be applicable in respect of imported raw material and captively consumed in the manufacture of a final product. Whether the incidence of the duty had been passed on to the consumer was not decided by the High Court in Solar Pesticide's case (supra) because in its opinion the principle of unjust enrichment could not apply to the cases of captive consumption. In the case of Solar Pesticide' Pvt. Ltd., therefore, we do not go into this question whether the incidence of duty had not been passed on by the respondent. This appeal is, accordingly, allowed and the impugned judgment....

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....Act, 1944 or Section 129-E of the Customs Act, 1962 is appealable in terms of Section 35G of the Excise Act, 1944 or Section 130 of the Customs Act, 1962." 8. In the judgment reported in 2000 (116) E.L.T. 401 (S.C.) [Union of India Vs. Solar Pesticide Pvt. Ltd.], the Hon'ble Supreme Court held that the principle of unjust enrichment is applicable to cases of captive consumption also. It was also held that the expression incidence of such duty being passed on to another person would take within its ambit not only the passing of the duty directly to another person but also cases where it is passed on indirectly. In the instant case, the plastic pipes/tubes were cleared on payment of duty for captive consumption in the manufacture of Dr....