Paramount Fabrics Pvt. Ltd. Vs. Commissioner of Central Excise

Paramount Fabrics Pvt. Ltd. vs Commissioner of Central Excise

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Aug 27, 2004

~3 min read

https://sooperkanoon.com/case/36375

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/36375
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: A M Moheb
Decided On: Aug 27, 2004
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Paramount Fabrics Pvt. Ltd.

Respondent

Commissioner of Central Excise

Excerpt

1. these appeals arose out of a common order passed by the commissioner of central excise (appeals), mumbai-v, wherein he disposed of three appeals against three orders-in-original passed by the lower authority.2. briefly the facts are that the appellants are independent processors of textile fabrics and were paying central excise duty under compounded levy scheme. the commissioner of central excise, mumbai-v, determined the annual production capacity based upon the declaration filed by the appellants. the appellants did not agree to the said determination order since galleries/cooling zone of the stenter were also included in stenter dimensions. however, they paid the differential duty with effect from 16.12.1998 onwards under protest. the appellants filed three different claims of refund of duty paid by them under protest, on the galleries portion of the stenter. the deputy commissioner rejected the claims inter alia on the ground that the appellants did not challenge the order of the commissioner determining the annual capacity and mere payment of duty under protest and representation made by them will not come to their rescue. he also held that the appellants failed to produce conclusive evidence that they have not passed on the incidence of duty to their buyers and so it has to be presumed as per section 12b of the central excise act that incidence of duty has been passed on to the buyers. he, therefore, held that the claims are not admissible. in appeal, the commissioner (appeals) held that the refunds have been rightly rejected on the ground of unjust enrichment.therefore, he sanctioned the refund amount but ordered it to be deposited in the consumer welfare fund and thus allowed appeals partly.4. i observe that the commissioner (appeals) at no stage dealt with the original authority's contention that the appellants have not challenged the order of the commissioner determining the annual capacity and, therefore, cannot claim any refund arising out of that.....

Full Judgment

1. These appeals arose out of a common order passed by the Commissioner of Central Excise (Appeals), Mumbai-V, wherein he disposed of three appeals against three orders-in-original passed by the lower authority.

2. Briefly the facts are that the appellants are independent processors of textile fabrics and were paying central excise duty under compounded levy scheme. The Commissioner of Central Excise, Mumbai-V, determined the annual production capacity based upon the declaration filed by the appellants. The appellants did not agree to the said determination order since galleries/cooling zone of the stenter were also included in stenter dimensions. However, they paid the differential duty with effect from 16.12.1998 onwards under protest. The appellants filed three different claims of refund of duty paid by them under protest, on the galleries portion of the stenter. The Deputy Commissioner rejected the claims inter alia on the ground that the appellants did not challenge the order of the Commissioner determining the annual capacity and mere payment of duty under protest and representation made by them will not come to their rescue. He also held that the appellants failed to produce conclusive evidence that they have not passed on the incidence of duty to their buyers and so it has to be presumed as per Section 12B of the Central Excise Act that incidence of duty has been passed on to the buyers. He, therefore, held that the claims are not admissible. In appeal, the Commissioner (Appeals) held that the refunds have been rightly rejected on the ground of unjust enrichment.

Therefore, he sanctioned the refund amount but ordered it to be deposited in the consumer welfare fund and thus allowed appeals partly.

4. I observe that the Commissioner (Appeals) at no stage dealt with the original authority's contention that the appellants have not challenged the order of the Commissioner determining the annual capacity and, therefore, cannot claim any refund arising out of that order without having the Commissioner's order set aside. It is a fact that the appellants have not gone in appeal against the determination of duty liability and the annual production capacity of stenter. The Tribunal in the case of CCE, Kanpur v. Flock (India) Pvt. Ltd. 2000 (120) ELT 285 held that a refund claim can be made only after the order of assessment demanding the differential duty, is set aside. The Commissioner (Appeals) has not dealt with, this aspect. I, therefore, remand the matter to the Commissioner (Appeals) to deal with the appeals in the light of the Tribunal's decision cited above and the Deputy Commissioner's observation at page 5 of his order and give a clear finding in that regard.

5. The appeals are thus allowed by remand. The orders of the Commissioner (Appeals) are set aside.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Paramount Fabrics Pvt. Ltd. vs Commissioner of Central Excise Same Subject Excise Same Judge A M Moheb