KERALA SPINNERS LTD. Vs. CCE, COCHIN

JUDGEMENT

(1.) IN this reference application, against Tribunal final order No. 937/98 dt. 19.5.1998 the following questions are posed for consideration for reference to High Court of Kerala under Section 35G of Central Excise Act, 1944: - -

(2.) LD . Advocate submits that it has all along been their contention that since the differential duty at higher rates was paid forcibly by them after almost 4 years from the date of payment of initial duty, therefore by that fact alone it was clear that the incidence of duty had not been passed on to the consumers. He submits that there is also a Chartered Accountant certificate on record to that effect. In this connection, he cites the decision of Harish Textile Engineers Ltd. as reported in, 1995 (79) ELT 277 (T) :, 1995 (60) ECR 96 (T) wherein it has been held that when any payment of duty has been deposited after the matter has been remanded back to the adjudicating authority, then that payment is only a pre -deposit for availing the right of appeal and the time limit under Section 11B is not applicable. He refers to para -5 of the said order which is extracted below: - -

(3.) LD . Advocate counters by saying that when, according to him, the provisions of unjust enrichment do not apply per se in this case, therefore there was no question of examining by the Tribunal whether they had discharged the burden of proof.