CCE, MEERUT Vs. SUPER CASSETTES INDUSTRIES AND ORS.

JUDGEMENT

(1.) SEVEN reference applications have been filed by the Revenue stating that the following points of law arise out of the Tribunal's Order No. A/734 -48/98 -NB dt. 28.8.1998: - -

(2.) SHRI R.D. Negi, ld. SDR submits that the points of law arise from the findings of the Tribunal contained in paras 8, 9 and 10.

(3.) NO one appeared for the respondents. In para 8 the Tribunal has held that "In the facts of the present case it is not in dispute that the manufacturers of plastic components had paid duty applicable to sub -heading 8523.12 under protest and subsequently the department had informed the manufacturer that the said items were not classifiable under heading 85.23. We, therefore agree with the contention of the ld. Counsel for the appellants that the amounts paid by the manufacturers on the plastic components cannot be retained by the department." For coming to this conclusion this Tribunal had relied on its earlier decision in the case Indian Plywood Manufacturing Co. Ltd. ( : 1985 (22) ELT 144 : 1985 ECR 2037 (T)) and judgment of the Andhra Pradesh High Court judgment in the case of Kesoram Cements ( : 1982 ELT 214 : 1982 ECR 364D (AP)) and the Tribunal's judgment in the case of Ceat Tyres (1980 ELT 563). Since the issue is not free from doubt, we hold that a point of law arises on this question. Second question of law arises out of the Findings of the Tribunal in para 9 of its order. The Tribunal has held in para 9 that "The Delhi High Court in the case of Bharat Commerce and Industries ( : 1979 ELT J -527 : 1979 Cen -Cus 447D (Del)) held that it was not permissible to do so if levy and assessment of goods under one particular tariff item is held to be illegal, the department cannot refuse to refund the amount on the ground that duty could have been levied under some other heading." We find that this further plea has been added by the Revenue that in case modvat credit has been taken and duty on the final products has been paid out of modvat credit then whether still the refund will be admissible. We find that the question of law arises inasmuch as the duty paid on plastic components was taken as modvat credit and duty on the final product was paid out of duty taken as credit on plastic components. Insofar as the unjust enrichment in respect of inputs captively consumed is concerned, the issue has already been decided by the apex court and, therefore no reference is now required. In this view of the matter, reference is partly allowed.