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2006 DIGILAW 690 (KAR)

Union of India v. Mulder India (P) Ltd.

2006-08-24

N.ANANDA, R.GURURAJAN

body2006
JUDGMENT R. Gururajan, J.—Revenue is before us in this appeal. 2. The respondent is engaged in the manufacture of Decalc on Trasfers (Ceramic Trasfers). The respondent holds Central Excise Registration Certificate in terms of the Central Excise Tariff Act, 1985. The respondent has availed the benefit of Small Scale Industry in terms of the Notification No. 1/1993 dated 28-2-1993. 3. The Deputy Commissioner of Central Excise issued a show cause notice, denying the benefit of Small Scale Industry in terms of the Notification No. 1/1993 dated 28-2-1993 and demanded the respondent to pay appropriate duty. The same was confirmed in terms of the order dated 14-8-1997. Thereafter, the respondent paid duty at the tariff rate under protest. The respondent preferred an appeal. The appeal was allowed. The Appellate Authority ordered consequential benefit in terms of the order dated 23-10-1999. In the light of the order of the Appellate Authority, the respondent filed an application seeking for refund of the duty amount. The same was sanctioned by the Deputy Commissioner. Thereafter, the Deputy Commissioner once again issued one more notice on 20-3-2001, stating therein that why the refund amount should not be recovered under Section 11B of the Central Excise Act, 1944 ('the Act' for short). The matter was heard. Reply was obtained. Thereafter, the Deputy Commissioner dropped the proceedings in the light of the show cause notice dated 20-3-2001 and directed to refund the amount payable to the respondent. Against the order of the Deputy Commissioner, an appeal was filed by the revenue before the Commissioner. The appeal stood dismissed. The revenue filed a second appeal before the Tribunal. The Tribunal also dismissed the appeal. It is in these circumstances, the revenue is before us. 4. We have heard Sri B. Papegowda, learned Counsel for the revenue. 5. According to the learned Counsel for the revenue, the respondent derived benefit, which according to him would amount to unjust enrichment in terms of the laws governing such enrichment. After hearing the learned Counsel for the appellant, we have carefully seen the material on record. 6. From the material on record what is clear to us is that the duty incidence was increased in terms of the law governing the duty. Even after increase of duty, the respondent has not chosen to increase the prices in terms of the material available on record. 6. From the material on record what is clear to us is that the duty incidence was increased in terms of the law governing the duty. Even after increase of duty, the respondent has not chosen to increase the prices in terms of the material available on record. Despite increase in the rate of duty, all the three authorities have held against the revenue. While so holding, the Tribunal would refer to the judgment delivered in the case of Swarup Fibre Industries Ltd. v. Commissioner of Central Excise, Meerut 2000 (120) E.L.T. 510 (Tribunal). 7. We have seen the aforesaid judgment of the Tribunal. The Tribunal in the said judgment, has chosen to rely on two more judgments of the Tribunal and thereafter the Tribunal has chosen to say that as no change has taken place in the price structure of the product after increase in the rate of duty, it cannot be said that higher rate of duty has been passed on to the customers. The refund granted was upheld and the appeal filed by the revenue was rejected. 8. We are in full agreement with the reasoning of the Tribunal in terms of the judgment reported in Swarup Fibre Industries Ltd. v. Commissioner of Central Excise, Meerut 2000 (120) E.L.T. 510. We do not find any legal errors in the order passed by the Tribunal. The order of the Tribunal is based on facts and no unjust enrichment is seen. The order of the Tribunal requires no interference. The same is confirmed. The appeal stands rejected, without being admitted. 9. Ordered accordingly. No costs.