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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, BOMBAY
J.H. Joglekar, J.
Commissioner of Customs & Central Excise, Ahmedabad -Appellant
Versus
Jai Ambe Plastex Industries -Respondent
Final Order No. CI/1806/WZB/2002 Appeal No. E/1925/1996-Bom., 1806 of 2002, 1925 of 1996
Decided On : 24-06-2008
Per J.H. Joglekar :
The respondents were not present. I have heard Shri A.K. Jain, learned DR for the Revenue.
2. The assessees had filed a refund claim of the duty paid on card cans on the ground that no duty was leviable. Show cause notice was issued alleging that the applications were barred by limitation and also that the claim was not substantiated by proper document. The principle of unjust enrichment was also invoked. The Assistant Commissioner in his order held a portion of the refund claim as barred by limitation and denied the remaining portion of 4,94,112.24 since the assessees had passed on the burden of duty to their buyers. Against this order the assessees filed an appeal. Before the Commissioner (Appeals) the assessee took the plea that what was paid by them should not be considered as duty but as deposit. The Commissioner accepted this ground and held that the principle of unjust enrichment did not stand attracted on this ground. He further directed that the refund being admissible be adjusted against duty payable on the intermediate goods namely plastic sheets. Against this order the appeal has been filed by the Revenue.
3. I find no ground for the Commissioner (Appeals) to have changed the character of the payment as "deposit" from that of "duty". It is clear that what was paid by the assessees was duty which had been passed on by them to their buyers inasmuch as no contest of this allegation has been made by the assessees. The order of the Commissioner (Appeals) is patently bad in law and does not survive.
4. The appeal by the Revenue is allowed.
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