SRF LTD., CHEMPLAST SANMAR LTD. Vs. CCE

JUDGEMENT

(1.) The appeal filed by M/s SRF Limited is against Order -in -Appeal No. 134/97 (T) dated 9.10.97 and the appeals filed by M/s. Chemplast Sanmar Ltd. are directed against Order -in -Appeal No. 137 and 138/95 (CBE) dtd. 16.8.95 and the appeals filed by M/s. Chemicals and Plastics India Ltd., are against Order -in -Appeal Nos. 18 and 19/95 (CBE) dated 28.2.95 by which the learned Commissioner (Appeals), Trichy has disallowed the refund claim on merit by upholding the orders of the Asst. Commissioner and by rejecting the appeals filed by the aforesaid appellants.

(2.) Ld. Advocate Smt. L. Mythili appeared on behalf of all the appellants and submits that the Hon'ble High Court of Judicature at Madras in the case of Addison & Co. v. CCE, Madras, 2001 (129) ELT 44 (Mad.) has held that there can be no passing on of the incidence of the duty if the manufacturer merely reduces his burden by receiving the refund. She, further, submitted that the Hon'ble High Court had framed the issue whether when the burden of duty was passed on by the manufacture to its various dealers by issue of credit notes. The tribunal was right in concluding that the ingredients of Section 11AB was not satisfied. This issue was answered by the Hon'ble High Court in favour of the assessee. She also invited our attention to the judgment rendered by this Bench in the case of Chemplast Sanmar Ltd. v. CCE, Coimbatore, 2002 (84) ECC 728 (T) : vide Firal Order No. 1174/2002 dt. 21/10/2002. The reference application before the High Court was decided in favour of the assessee by setting aside the order of the Tribunal and answered the reference in favour of the assessee. She also invited our attention to the CEGAT's decision rendered in the case of Satpal, Amritsar v. CC and CCE, Chandigarh, 1987 (27) ELT 107 (T) in which it has been held that the appellate Tribunal has to keep in view the decision of the High Court within whose' jurisdiction the original proceedings are arising, particularly, if reference was made to that High court. She, therefore, submitted that since reference was made to the High Court of Judicature at Madras in the case of Addison & Co. v. CCE, Madras (supra) and the decision is in favour of the assessee, such decisions are binding on the Tribunal as they are under the Superintendance and control of the Hon'ble High Court of Judicature at Madras. She also invited our attention to the judgment rendered by the Tribunal in the case of Lamps, Caps and filament Ltd. v CC, Bombay, 1987 (27) ELT 93 (T) in which also it has been held that the Tribunal is bound by the judgment of the High Court within whose jurisdiction they are functioning. She, therefore, submitted that in view of the decision of the Hon'ble High Court in the case of Addison & Co. v. CCE, Madras, the y are entitled for the refund. She, therefore, submitted that the orders of the learned Commissioner may be set aside and refund allowed to them.

(3.) Ld. SDR Smt. R. Bhagya Devi and learned JDR Shri A. Jayachandran submit that the provisions of unjust enrichment are attracted even where the collected amount of Excise duty has been paid back to the buyers subsequently as has been held in the case of S. Kumar's Ltd. v. CCE, Indore, 2003 (85) ECC 642 (LB) : 2003 (53) RLT 399 (CEGAT -LB). In the above cited case, the Larger Bench held that the view taken in Thermon Heat Tracers Ltd., 2001 (45) RLT 85 (CEGAT) ; 2001 (132) ELT 455, is not good law and the ratio in the decision of Sangam Processors (Bhilwara) Ltd. v. CCE, Jaipur, 1994 (71) ELT 989 (T) which had been affirmed by the Apex Court has to be followed. She, further, submitted that in the case of Sangam Processors (Bhilwara) Ltd. (supra), the credit note in respect of duty incidence issued by the assessee to customers even before issue of Notification under Section 11C the refund claim was found to be not admissible. She, further, invited our attention to another judgment of Larger Bench in the case of Mira Silk Mills v. CCE, Mumbai, 2003 (56) RLT 152 (CEGAT -LB) wherein the Larger Bench has held that in the normal circumstances if there is conflict between law laid down by a High Court and the ratio of the decision of the Tribunal, whether it is a Larger Bench or not, the High Court decision will prevail over the Tribunal decision. But in the present case, since the Tribunal's decision in the case of Sangam Processors (Bhilwara) Ltd. (supra) is based on the ratio of the Supreme Court decision then it will prevail over in view of the provisions of Article 141 of the Constitution. She, therefore, submitted that in view of the fact that the issue is decided by the Hon'ble Apex Court, the judgment of Apex Court will prevail over the judgment rendered by the High Court. In view of above facts and circumstances and the law laid down by the Supreme Court she submits that all the appeals are required to be rejected.