Full Judgment
3. The ld. Counsel appearing for the respondents drew my attention to para 4 on page 13 of the impugned order. For the sake of convenience par 4 is reproduced as under:- "I have carefully considered the facts on record and the submissions made by the appellants. I find that there is no dispute about the fact that the appellants have paid excess amount towards duty, then what they were required to pay as per the APC fixed by the competent authority. This amount can be considered only as a deposit and the provisions of unjust enrichment would not be applicable to such type of refund. I find substantial force in the contentions raised by the appellants in this regard." 4. He further submitted that the period involved in this case is 1.8.99 to 8.8.99 and refund amount belongs to this period. During this period the respondent has paid nil rate of duty and as such the question of the passing on the incidence to the buyers does not arise. The respondent has been paid Rs. 6 lakhs as deposit pending fixation of the APC. In this regard he also drew my attention to page 14 of the Order-in-Original. The relevant para is reproduced as under:- "I find that the claimant herein engaged in processing of specified fabrics come under purview of category of independent procession w.e.f 09.08.99 as specified under Rule 96 ZQ of C.E.R., 1944.
However, the claimant has discharged C.Ex. Levy Rs. 6,00,000/- Under Section 3A for the month of August 99. On the basis of 4 chambers installed in a stenter machine before fixation of APC by Commr., C.Excise under Rule 96-ZQ of CER, 1944. Later on Commissioner of Central Excise vide letter dtd. 10.9.99 issued from No. 19/16-242/MP/98-P has fixed APC for the period 09.09.99 to 31.8.2000 and as per APC fixed by Commissioner, the claimant had to be discharged C.Ex. Levy of Rs. 4,45,161/- for the period 09.08.99 to 31.08.99. However, claimant has made deposit of Rs. 6,00,000/- Under Section 3A for the month of 8/99 amd tjerefore the claimant has tiled refund of duty of C.Ex. of Rs. 1,54,839/- discharged Under Section 3A.5. He also drew my attention to page 3 of the appeal filed by the Revenue. The relevant para is reproduced as under:- "It has been observed that the assessee herein engaged in processing of specified fabrics, come under purview of category of independent processor, w.e.f 09.08.99, as specified under Rule 96ZQ of Central Excise Rule, 1944, however, the assessee has discharged Central Excise, levy of Rs. 6,00,000/- Under Section 3A for the month of August-99. on the basis of 4 chambers installed in 1 stenter machine. Therefore, fixation of APC by the Commissioner, Central Excise under Rule 96-ZQ of Central Excise Rules, 1944. Later on Commissioner of Central Excise vide letter dated 10.09.99 to 31.03.2000 and as per APC fixed by the Commissioner, the assessee had to be discharged Central Excise levy of Rs. 4,45,161/- for the period 09.08.99 to 31.08.99, however, the assessee has made deposit of . Rs. 6,00,000/- Under Section 3A for the month of 8/99 and therefore, the assessee has filed refund of duty of Central Excise of Rs. 1,54,839/- for the period 1.8.99 to 8.8.99 discharged Under Section 3A of CEA, 1944." 6. In support of his contention he relied on the decisions in the case of CCE v. Modi Oil and General Mills reported in 2002 (150) E.L.T.43O (Tri. Del) and Emcee Pharmaceuticals Pvt. Ltd. reported in 2002 (150) E.L.T.432 (Tri.-Kolkata).
7. After hearing both sides, perusal of the records and case laws relied on by the respondents, I do not find any merits in the appeal filed by the Revenue and the same is dismissed.