TaxTMI 
TaxTMI 
2016 (7) TMI 893
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....i) Cement cleared in packaged form meant for retail sale, where the duty is payable on the basis of Retail Sale Price + Specific Rate of duty, in terms of Section 4 A of the Central Excise Act, 1944. ii) Cement cleared in packaged form, where RSP is not required to be affixed on the bags(not for Retail sale but for Industrial or Institutional Consumers) The duty is payable on the basis of transaction value in terms of Section 4 of the Central Excise Act, 1994. iii) Cement cleared in other packaged form(loose cement) where duty is payable on the basis of transaction value in terms of Section 4 of Central Excise Act, 1944. 3. The Issue in the present case is in respect of cement cleared in packaged form, where RSP is not required to be a....
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....0/- per Mt. Specific rate. 7. During, the period from 18-03-2012 to 24-03-2012, the appellant cleared the goods to Industrial/ Institutional Consumers at the rate of 12% Adv. + Rs. 120/- per MT. specific rate. Pursuant to the Corrigendum, appellant filed refund claim for the excess duty paid. According to the appellant as the corrigendum relates back to 17-03-2012, the excess amount paid is not a duty at all and that being merely a deposit, it has to be refunded. Being merely a deposit unjust enrichment is not applicable. The second argument is that, there is no change in the price collected from customers. That therefore, the incidence of duty has not been passed on and therefore, refund is not hit by unjust enrichment. 8. The orig....
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....den of duty has not been passed on to the customers. In the absence of documents to substantiate that incidence of duty is borne by them, the refund amount is hit by unjust enrichment. 10. The Commissioner (Appeals) failed to rely on the Order-in Appeal dated 22-01-2014 passed in appellant's own case in which, the Commissioner (Appeals) applied the dictum laid in the case of CCE, Gurgaon Vs Uniproducts Ltd. reported in 2009(238) ELT 735(P&H) where it was held that the difference in duty paid being excess amount paid as deposit, does not have the colour of duty and therefore, is not hit by unjust enrichment. The appellants have filed the present appeal against the rejection of refund on the ground that it is hit by unjust enrichme....
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....is not denied that appellant mentioned the duty separately in the invoices. 15. The appellant has furnished a comparison chart showing excess duty paid in the case of Institutional/industrial customers on particular invoices during the period 18-03-2012 to 24-03-2012. He relies upon this statement to canvas the contention that the price remained uniform even when the appellant paid the higher duty (from 18-03-2012 to 24-03-2012) and that therefore, the appellant has not passed on the duty to the customer. Details of one invoice contained in the comparison chart is give below as example: (A) Excise duty paid computation as per original invoice(the higher duty paid). (B) Date : 18-03-2012 (C) Invoice No : 1300161013 (D) Customer Name....
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....artment the SLP was dismissed. 18. In the said case, the department disputed the classification of goods, and directed the assessee to classify the goods under the heading 2404.90. The duty payable under such classification was higher @ 16%. The assessee under protest paid higher duty. Later, w.e.f. 01-03-2001, the tariff rate settled the controversy of classification. The assessee filed refund claim of the higher duty paid which was rejected for the reason of unjust enrichment. The assessee produced a comparison chart establishing that incidence of duty was borne by assessee and not passed on to customers. However, taking note of the fact, that invoices had separately shown the Central Excise Duty, which would mean that duty is passed on ....
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....n. 20. This brings me to the position that after issuance of corrigendum the excess duty, paid lacks the colour of duty and is merely a deposit. The Hon'ble Court of Kerala in W.P.(c) No.18126/2015(M) vide Order dated 06-05-2015 in M/s Geojit BNP Paribas Financial Services Ltd Vs CCE, Customs & ST, Kochi referring to the judgment laid in CCE, Bangalore Vs KVR Constructions 2012 (26) STR 195 (Kar) quoted that "When once there was no compulsion or duty cast to pay the service tax, the amount of Rs. 1,23,96,948/- paid under mistaken notion would not be a duty or 'service tax' payable in law. Therefore, once it is not payable in law there was no authority for the department to retain such amount. By any stretch of imagination, it w....