TaxTMI 
TaxTMI 
2023 (9) TMI 176
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....n the State of Jharkhand. The appellants were registered as a Small Scale Manufacturer and were working under SSI exemption Notification No.175/86-CX dated 01.03.1986. However, in the year, 1985-86, the Central Excise Authorities sought to deny the exemption by clubbing the clearances of M/s Gillooram Gaurishankar and M/s G.P.Dalmia & Sons on the ground that the proprietor of M/s G.P.Dalmia & Sons is one of the partner of M/s Gillooram Gaurishankar , which is the partnership concern consisting two partners, namely, Smt.Kapuri Devi Dalmia and Shri G.P.Dalmia, as Karta of his Hindu Undivided Family. 2.1 Although, the clearances made by both the appellants from their independent factory, were below the exemption limit, but by clubbing the clearances of the said appellant, it fell beyond the exemption limit of Rs.7.50 lakhs. 2.2 The appellants were supplying the goods to Bihar State Electricity Board (BSED) under IBRD, Financed Projects. As BSED was not paying them the Excise duty, but the same was collected by the appellant from Government of India under IBRD, Financed Projects. 2.3 The Revenue is of the view that both the appellants are as a single entity and denied small scale ex....
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....o 29.03.86 58/92 dated 30.01.1992 V(18)76/43- Refund/88/Pt 3,27,758.31 04.08.86 03.10.88 to 59/92 dated 30.01.1992 V(18)76/42- Refund/88/Pt 2,02,227.67 23.10.87 to 03.03.88 60/92 dated 30.01.1992 V(18)74/14- Refund/88/Pt 2,29,687.50 19.05.85 to 29.01.86 M/s G.P. Dalmia & Sons 53/92 Dated 30.01.1992 V(18)74/45- Refund/88/Pt 76,064.82 15.04.80 to 08.09.80 54/92 Dated 30.01.1992 V(18)76/39- Refund/88/Pt 62,500.00 02.05.79 to 17.02.80 55/92 Dated 30.01.1992 V(18)76/46- Refund/88/Pt 5,56,798.66 30.04.87 to 31.03.88 56/92 dated 30.01.1992 V(18)(74)/48- Refund/88/Pt 7,23,219.00 1986-87 2.11 The said order was challenged before the ld.Collector (Appeals), who rejected the appeals filed by the appellants holding that it is immaterial whether the question of unjust enrichment was invoked in the show-cause notice prior to amendment made in Customs Laws (Amendment) Act, 1991 under Section 11B of the Central Excise & Salt Act, 1944. Regarding insertion about the unjust enrichment or not, he also held that as the matter of fact that the appellants have realized the Central Excise duty from the Government as they also g....
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....Authority cannot be decided the issue of unjust enrichment and the Circular issued by the Department is binding on the adjudicating authority as held by the Hon'ble Apex Court in the case of Paper Products Limited reported in 1999 (112) ELT 765 (S.C.). 3.3 He further submits that with regard to unjust enrichment, the appellant has not collected any duty from Bihar State Electricity Board, to whom they cleared all the clearances. To that effect, they produced the invoices as well as the certificate of payment issued by Bihar State Electricity Board. 3.4 In that circumstances, it is prayed that the refund claim be sanctioned to the appellants by setting aside the impugned order along with the interest. 4. One the other hand, the ld.A.R. for the Revenue, supported the impugned order and submits that the appellants have failed to pass the bar of unjust enrichment and it is mandate of the law itself by amending the provisions to Section 11B of the Act at the time of amendment w.e.f. 20.09.1991 that the bar of unjust enrichment shall apply to the pending cases. Therefore, refund claims have rightly been rejected. 5. Heard the parties and considered the submissions. 6. On considerati....
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....ade duty. It is true that Shri G.P. Dalmia had a 50% interest in M/s Gillooram Gaurishankar. But that interest is on behalf of his joint family consting of his branch of the joint family. The appellants have also referred to several other circumstances namely, separate central excise licence, separate Income Tax assessment, separate sale tax assessment, separate location of the factories, etc. which also lend support to the case that these two firms are distinct legal entitles. The decision of the Tribunal in 1983 E.L.T. 1994 applies to the present facts and the partner of a firm cannot be considered as the firm itself. The manufacture of goods by M/s Gillooram Gourishankar cannot be considered as a manufacture for and on behalf of the appellants and vice versa. The Additional Collector has confirmed the demand without giving the benefit of Notification No. 71/78 only on the ground that Shri G.P. Dalmia had a 50% interest in M/s Gilloram Gaurishankar. The interest of Shri G.P. Dalmia in the appellant firm is a distinct legal concept compared to his interest in the partnership, M/s Gollooram Gaurishankar. 13. In Appeal No. 324/82, we find that the clearance was on 2.6.78 and the ....
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....ch shows that the impugned order has been passed after almost 22 years, which shows, how the lower authorities are serious about their working and duties by keeping the refund claim pending for more than 22 years. 9. The adjudicating authority has rejected the refund claim holding that the appellants have failed to pass the bar of unjust enrichment The appellants have produced copies of invoices to Bihar State Electricity Board and of payments issued by Project Authority. The same are enclosed here for understanding the fact that the appellant has passed the bar of unjust enrichment : 10. On going through the said invoice and the certificate issued by the recipient of the goods, it is clear that the duty component has been borne by the appellants themselves. Moreover, the appellants have cleared the good to Bihar State Electricity Board under IBRD Financed Project and for the said clearance, the appellant is not liable to pay duty at all on their clearance, but the fact that the appellants were denied the benefit of SSI exemption, therefore, the appellants paid duty under protest and cleared their goods. 11. Moreover, while rejecting the refund claims on the bar of unjust enrich....