INDAG RUBBER LTD. Vs. CCE

JUDGEMENT

(1.) HEARD both sides. The appellant filed this appeal against the Order -in -Appeal passed by the Commissioner (Appeals). In the impugned order, six refund claims were rejected on the ground that time bar as well as on the principles of unjust enrichment.

(2.) THE contention of the appellant is that they filed a classification list w.e.f. 10.3.87 claiming the classification of Reversal Spray Compound under heading 35.06 of the tariff assessments were remained provisional during this period and proper officer vide order dt. 23.2.89 finalised the assessments and held that the Reversal Spray Compound is classifiable under Heading 4005 of the tariff and directed the appellant to deposit the differential duty. In the month of June'89 and July'89, the appellant paid the amount of Rs. 6,99,316 in respect of the clearances made during the period 10.2.87 to 28.2.89, the appellant also started paying duty under protest under Heading 4005 of Central Excise Tariff. The appellant challenged the order dated 23.2.89 passed by the Asstt. Commissioner before Commissioner (Appeals) and the Commissioner (Appeals) dismissed the appeal. Thereafter, the appellant approached the Tribunal and Tribunal vide order dt. 14.8.97 allowed the appeal filed by the appellant by saying that Reversal Spray Compound is classifiable under heading 35.06 of the Central Excise Tariff. Revenue challenged the order passed by the Tribunal and the Hon'ble Supreme Court dismissed the appeal vide its order dt. 30.3.98. In pursuance of the order, the appellant filed this refund claim. The contention of the appellant is that refund claim is not time barred in respect of the first claim of Rs. 6,99,316. In pursuance to the order passed by the Tribunal as consequential relief and as the appellants were paying duty under protest which is evident from the duty paying documents, as well as from the fact that they had challenged the order passed by the Asstt. Commissioner before the Commissioner (Appeals) and before the Tribunal, therefore, refund cannot be rejected as time barred.

(3.) THE contention of the revenue is that refund claims are filed after six months from the date of payment duty hence all time barred. The contention of the revenue is that the price remains the same during the goods cleared at the higher rate of duty and during the period less duty is paid is not ground for say the burden of duty has not been passed. The Revenue relied upon the decision of the Hon'ble Supreme Court in the case of CCE, Mumbai -II v. Allied Photographics India Ltd. .