1998(09)LCX0116
IN THE CEGAT, COURT NO. III, NEW DELHI
Ms. Jyoti Balasundaram, Member (J) and Shri V.K. Agrawal, Member (T)
PARAS LAMINATES PVT. LTD.
Versus
COLLECTOR OF CENTRAL EXCISE, JAIPUR
Final Order No. 776/98-C, dated 11-9-1998 in Appeal No. 2554/92-C
Cases Quoted
Collector v. Bakelite Hylam — 1997(03)LCX0041 Eq 1997 (091) ELT 0013 (S.C.) — Followed [Para 2]
Mafatlal Industries Ltd. v. Union of India — 1996(12)LCX0012 Eq 1997 (089) ELT 0247 (S.C.) — Relied on [Para 2]
Paras Laminates Pvt. Ltd. — Tribunal’s Final Order Nos. 1032-1033/90-C, dated 17-9-1990 — Referred [Para 2]
Advocated By : Shri Narinder Sharma, Advocate, for the Appellant.
Shri H.K. Jain, DR, for the Respondent.
[Order per : Jyoti Balasundaram, Member (J)]. - The appellants herein are manufacturers of paper based Electrical Insulators. According to them, such insulators fell for classification under CET sub-heading 8546.00. However, the department was of the view that such insulators fell under CET sub- heading 3920.31 and on that basis, the appellants were paying duty at the rate applicable under 3920.31. In February 1989, the Tribunal held that paper based Electrical Insulators were classifiable under CET sub-heading 8546.00 while deciding the appeals of M/s. Metrowood Engineering Works and two others. On this basis, the appellants filed three separate refund claims, all on 9-3-1989, for the periods 10-11-1986 to 29-1-1987, 3-2-1987 to 31-3-1988 and 4-8-1988 to 11-10-1988. The refund claims were rejected by the Assistant Collector both on merits as well as on time bar and he also held that the claim of refund would be hit by the bar of unjust enrichment. The lower appellate authority upheld the order of the Assistant Collector on the aspect of time bar. He however, confirmed that since refund was not available on merits, the question of unjust enrichment does not arise.
2. We have heard Shri Narinder Sharma, learned Counsel and Shri H.K. Jain, learned DR. We find that in the appellants own case, the Tribunal vide Final Order Nos. 1032-1033/90-C, dated 17-9-1990 has held that industrial laminates are classifiable under CET sub-heading 8546.00. In the case of Collector of Central Excise, Hyderabad v. Bakelite Hylam reported in [1997(03)LCX0041 Eq 1997 (091) ELT 0013 (S.C.)], the Apex Court has confirmed classification of Electrical Insulators of any material under CET sub-heading 8546.00. Having regard to the above judgment of the Apex Court, we hold that the refund claims of the appellants are admissible on merits. However, there is no material before us to establish that the documents on which the appellants are now relying in support of their contention that duty during the period covered by the refund claims was paid under protest, were before either of the authorities below. The Assistant Collector has stated that the appellants have not followed the procedure prescribed under Rule 223B and the Collector (Appeals) has categorically held that the appellants did not pay duty under protest. The appellants submit that they had filed a written brief before the Collector (Appeals) on 20th December, 1991. Since the evidence of the appellants that duty was paid by them under protest for the entire period covered in these appeals, has been raised before us, we remand the aspect of time bar to be considered by the Jurisdictional Assistant Commissioner who shall examine the evidence produced before him by the appellants and then determine if the duty was paid under protest. If he is so satisfied, the refund claims will have to be held as not being hit by time bar. On the other hand, if he is not satisfied that duty was paid under protest, then the refund claims will have to be rejected on this ground. The aspect of unjust enrichment also is relevant in view of the judgment of the Supreme Court in the case of Mafatlal Industries reported in [1996(12)LCX0012 Eq 1997 (089) ELT 0247 (S.C.)]. In other words, all refund claims will be governed by the amended provisions of Section 11B of the Central Excise Act, 1944. Therefore, the appellants are given the liberty to establish before the Assistant Commissioner that they have not passed on the duty burden to their buyers. In the event of their not satisfying the Assistant Commissioner on this issue, the refund claims will be hit by the bar of unjust enrichment. The appeal is disposed of in the above terms. The Assistant Commissioner shall take steps as expeditiously as possible to decide the matter.
Equivalent 2000 (117) ELT 761 (Tribunal)