industrial Chemical and Manomers Vs. Commissioner of C. Ex. - Court Judgment

Excerpt:

.....same was not in respect of inclusion of the cost of the metal containers in their final product. the same related to the deductions of some post manufacturing expenses. as such it cannot be said that there was protest in respect of disputed issue. as regards unjust enrichment. asst. commissioner has observed that the appellant has not produced sufficient documentary or any other evidence to establish that the amount of duty involved, of which the refund has been claimed was collected from or paid by them and the incidence of such duty has been passed on to them or to any other person. we find that in the memorandum of appeal, the appellant has not disputed the finding of unjust enrichment and have also not placed any evidence on record to show otherwise. as regards time bar also we are in agreement with the observation made by the authorities below that the refund claims having been filed in the year 1992 covering the period october, 1975 to march, 1979 and is hopelessly barred by limitation. the protest letter filed for post manufacturing expenses cannot be treated as the protest for the deduction of metal containers from the assessable value of the calcium carbide. as such, we.....

Judgment:

1. The appellant has made a prayer for decision on merits. Accordingly, we have heard Smt. Bhagya Devi, ld. SDR.2. The issue involved in all the three appeals is the refund claim filed by the appellant for the period October, 1975 to November, 1980.

The said refund claim was filed on the ground that the value of the metal containers used to pack calcium carbide manufactured by the appellant is to be deducted from the assessable value of their final product inasmuch as the metal containers are durable and returnable.

The refund claim filed by the appellant in April, 1982 and November, 1982 were rejected by the Assistant Commissioner on the ground of time bar as also on account of unjust enrichment. The appeal against the above order of the Assistant Commissioner did not succeed before the Commissioner (Appeals).

3. After going through the impugned order we find that the refund claims have been rejected on account of time bar as also on unjust enrichment. As regards the time bar, it is noted that the claim has admittedly been filed after the period of 6 months from the relevant date. The authorities have observed that though there was a protest letter by the appellant in the year 1980, the same was not in respect of inclusion of the cost of the metal containers in their final product. The same related to the deductions of some post manufacturing expenses. As such it cannot be said that there was protest in respect of disputed issue. As regards unjust enrichment. Asst. Commissioner has observed that the appellant has not produced sufficient documentary or any other evidence to establish that the amount of duty involved, of which the refund has been claimed was collected from or paid by them and the incidence of such duty has been passed on to them or to any other person. We find that in the memorandum of appeal, the appellant has not disputed the finding of unjust enrichment and have also not placed any evidence on record to show otherwise. As regards time bar also we are in agreement with the observation made by the authorities below that the refund claims having been filed in the year 1992 covering the period October, 1975 to March, 1979 and is hopelessly barred by limitation. The protest letter filed for post manufacturing expenses cannot be treated as the protest for the deduction of metal containers from the assessable value of the calcium carbide. As such, we do not find any merit in the appeal on both the issues. The appeals are accordingly rejected.