SAKTHI TAPES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) By this appeal the appellants M/s. Sakthi Tapes, challenges the Order -in -Appeal No. 116/98(CBE), dated 28 -9 -98 passed by the Commissioner of Central Excise (Appeals), Trichy, by which he has partially allowed the appeal filed by the appellants against the order of the original authority by holding that the appellants are eligible for refund of duty for the period prior to six months i.e. 14 -11 -95 to 18 -1 -96. He has held that the relevant date for the purpose of refund claim is the date of payment of duty. He has also held that in the present case the appellants have not passed on the incidence of duty to their customers and hence the question of unjust enrichment does not arise. The original authority had rejected the refund claim filed by the appellants under Section 11B(1) of the C.E. Act, 1944 on the ground that duty in the present case was paid during the period from 7 -6 -95 to 18 -1 -96 and the refund claim was filed on 7 -8 -96 and hence the same was beyond the six months time limited laid down under Section 11B.

(2.) The brief facts of the case are that the appellants were clearing narrow woven fabrics affixed with the brand name of the customers by availing the concession as provided under Notification no. 1/93 -C.E., dated 28 -2 -93 as amended. The department had objected to tins and directed the appellants to pay duty at normal rate in respect of such goods. Show cause notice was accordingly issued which culminated in the order of adjudication passed by the Assistant Commissioner whereby he has held that the appellants are not entitled to the benefit of exemption Notification No. 1/93. In spite of the appeal filed by the appellants before the lower appellate authority, the department directed the appellants to clear the goods without the benefit of the notification in question and because of the said directions, the appellants had to clear the goods without availing the benefit of the notification and on payment of duty in respect of the goods viz. narrow woven elastic tapes bearing the customer's brand name. Consequently on the orders of the Commissioner (Appeals), holding that the appellants are entitles to the benefit of the said notification, the Department permitted them to avail the concession under the said Notification. The order of the Commissioner (Appeals) dated 27 -2 -96 was received by the appellants on 11 -3 -96 and they have filed the refund claim within a period of six months i.e. on 13 -5 -96. The relevant date for the purpose of reckoning the time -bar is the date of receipt of the order of the Commissioner (Appeals).

(3.) Shri S. Kandaswami learned Consultant, for the appellants submitted that the Commissioner (Appeals) has noted that the appellants have not passed on the burden of duty to their customers. He has however held that the relevant date for reckoning the period of six months for the purpose of filing the refund claim is the date of payment of duty. In fact in this case, they had to pay the duty on a clear direction from the department and aggrieved by that direction they moved the Commissioner (Appeals). It was after the outcome of the appeal before the Commissioner (Appeals), they came to know that they are not finally required to pay duty and accordingly they filed refund claim. Therefore, the relevant date in their case is the date of knowledge which in the present case is on receipt of the order of the Commissioner (Appeals) on 11 -3 -96 and not the date of payment of duty. He therefore, sought for allowing the appeal.