COMMISSIONER OF CENTRAL EXCISE Vs. ARR SALES AGENCY

JUDGEMENT

(1.) The respondents had purchased "sugantha supari" from its manufacturers viz. M/s. Rukmani Packwell Traders during the period June, 1994 to March, 1995. The purchases were under Rule 52A invoices wherein the supplier (manufacturer) showed duty as having been paid 'under protest'. This protest by the manufacturer was vacated by the Assistant Commissioner of Central Excise in Order -in -Original No. 95/96, dated 24 -6 -96 which became final. On 21 -12 -99, the respondents filed refund claim in respect of the duty paid on the "sugantha supari" purchased under the above invoices. This claim was based on the Madras High Court's judgment in Writ Petition Nos. 4265 -4267/94 filed by a group of supari manufacturers not including M/s. Rukmani Packwell Traders. That judgment had held that betel -nut powder, known as "supari", not containing tobacco was not to be treated as "pan masala" and hence not exigible to duty of excise. The original authority rejected the refund claim on merits as well as on the grounds of time -bar and unjust enrichment. It held that the assessee was not eligible for the benefit of the High Court's judgment as they were not a part to any of the Writ Petitions. In the appeal preferred by the party, the learned Commissioner (Appeals) took the contra view and held that, as the High Court's judgment was passed in rent, its benefit was available to the assessee. On the question of limitation, the appellate authority held that the claim was not time -barred as it had been filed within six months from the date on which a certified copy of the judgment was made available. It also found upon verification of records that the incidence of duty had not been passed on by the assessee to any other person and hence their refund claim was not hit by unjust enrichment. The Revenue is in appeal against this decision.

(2.) Heard both sides. The learned SDR submits that the refund claim filed on 21 -12 -99 in respect of the duty paid during the period 1994 -95 was hopelessly time -barred and that the claimant was not entitled to the benefit of the fact that the supplier (manufacturer) had paid duty under protest. In support of this submission, the SDR points out that the protest of the manufacturer had been duly vacated by the original authority and that the decision of the original authority was never challenged by the respondent. Even otherwise, according to the learned SDR, the respondent should not have taken refuge under the fact that the manufacturer had paid duty under protest. In this connection, reliance is placed on the Tribunal's Larger Bench decision in National Winder v. CCE, Allahabad reported in 2000 (118) E.L.T. 236 (Tri. -LB), wherein it was held that any refund claim filed by the buyer/purchaser after six months of the purchase of the goods would be hit by limitation, even if duty had been paid under protest by the manufacturer. The learned Consultant for the respondent submits that, as the judgment of the High Court was passed in rem, they would be eligible for its benefit and therefore their refund claim was not liable to be rejected on merits or on the ground of limitation. The period of limitation should be reckoned from the date on which the judgment of the High Court was produced before the original authority as held by the lower appellate authority. With regard to unjust enrichment, it is submitted that the lower appellate authority has duly verified the records and found that the respondents had not passed on the "burden of duty" to any other person. According to the learned Consultant, this finding of fact recorded by the Commissioner (Appeals) is irrebuttable.

(3.) After giving careful consideration to the submissions, I find that there are three issues arising in this case :