TaxTMI 
TaxTMI 
2008 (6) TMI 152
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....ucts on payment of appropriate duty on 17-11-86. They were asked to file another classification list with effect from 21-11-86 in which again the appellants claimed benefit of notification 125/86 but the same was arbitrarily scored of as the classification list was approved by the Asst. Commissioner on 18-12-86 requiring them to pay duty at the rate of 15% ad valorem. They therefore addressed a letter dated 5-12-86 to the Jurisdictional Asst. Commissioner which was delivered and received in the Range office on 5-12-86 and in (ho Asst. Commissioners office on 15-12-86 stating that they shall be paying duty under protest and shall be availing modvat credit under the modvat scheme. Against the approval of the classification list they filed an appeal with the Commissioner (Appeals), who vide his order in appeal dated 9-11-87 remanded the matter for de novo decision as the approval was done without giving an opportunity to the respondents to present their case. On de novo proceedings the Asst. Commissioner vide order dated 20-3-89 and 24-8-99 held that the respondents are eligible for complete exemption under Notification 132/86-C.E. and finalised the approval of various classification ....
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....omers. He rejected the plea of the respondents that the prices of the impugned products remained same both prior to imposition of duty and during the period when they were paying duty as well as when they stopped paying duty. It was held by him that in the price list submitted by the respondent the assessable value was much below the invoice value even after allowing the deduction of sale tax and discount passed by assessee which only establish that the duty was recovered by him from his customers. The respondent filed appeal against the order of the Asst. Commissioner rejecting the entire refund claim. The Commissioner (Appeals) in his order held that so far as the refund relating to an amount of Rs. 28,99,754.35 was concerned, the same was denied on the ground that once the assessee's final product were exempted from duty they were not entitled to the modvat credit. The Commissioner (Appeals) held that though it is correct that the assessee was not entitled to the modvat credit but the same could have been recovered by the department only by issuing of a show cause notice and once a show cause notice has not been issued, the refund of the same cannot be denied and no adjustment o....
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....product was held to be ineligible for payment of duty on other final products. As regards refund amount to Rs. 1,31,952.78 it was stayed that since the protest letter was received in the Divisional office on 15-12-86 the same shall have effect from that date and accordingly rejection of refund of the amount for the period 4-12-86 to 14-12-86 on ground of time bar was in order. 4. As regards the applicability of doctrine of unjust enrichment it was submitted that the assessee have opted for cum duty price structure and has, claimed abatement in the price list on account of sales tax/trade discount and Central excise duty. However, while preparing the invoice they have been showing only discount/sales tax but not the Central excise duty. Therefore, invoice value after these deduction represent cum duly price. Further, as per paragraph 19 of order in original the assessee themselves had contended before the Asst. Commissioner that during the period, when they were paying duty or after they stopped paying duty, the price charged to the customer remained same. In fact the assessee should have reduced the price to the extent of excise duty when they paid Central excise duty in order to ....
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....ng refund without issuance of a show cause notice. Similarly, the Bombay High court has in the case of Western Bengal Coal Fields v. U.O.I. - 1989 (43) E.L.T. 27 (Bom.) held, recovery by adjustment is not allowable as recovery can be made only by resort to the procedure as laid down under section 11A of the Central Excise & Salt Act, 1944. In view of this, the refund of this amount could not have been denied. As regards the refund of Rs. 1,31,952.78 on ground of time bar, it was submitted that once the protest letter was received in the Range Office on 5- 12-1986 the protest will be effective from that date irrespective of the fact that the same was received in the Divisional office on 15-12-86. 7. It was vehemently argued the assessment in this case were provisional and in this regard reliance was placed on the decision of the Apex Court in the case of Samrat International - 1992 (58) E.L.T. 561 (S.C.) wherein it was held once classification/price list submitted by the assessee but approved by the Asst. Collector after sometime clearance made in the meantime are to be deemed provisional even if B-13 bond is not executed but personal ledger account is maintained. It was submitted....