ORDER
Shri S.L. Peeran
1. This appeal arises from Order-in-Appeals No.383/96(H)-CE dated 18.9.96 by which the Commissioner (Appeals) Hyderabad held that the appellants were manufacturing laminates consisting of sheets of papers, paper boards, impregnated coated or covered with plastics and compressed together in one or more operations falling under Chapter Sub Heading 4823.90 of Central Excise Tariff, i.e. within the exclusive provision of Notification No.20/94 and further he has held that they are all different types like industrial laminates, decorative laminates and others.He has noted that prior to amendment by Notification No. 144/94, exclusive portion of Notification No.20/94 covered all varieties of laminates.After the amendment by fresh notification 20/94, the exclusive portion has distinguished decorative laminates from other laminates.He has held that in other words,decorative laminates continues to be under exclusive portion notification 20/94 prior to amendment and subsequent to amendment.He has quoted that amended notification does not appear to have a different status to decorative laminates bringing them within the purview of exemption under Notification No.20/94.On this basis, he has rejected the refund claim amounting to Rs.46,97,605.57 for the period 8.9.94 to 21.12.94.In other words, the Commissioner had given retrospective effect to the notification O. 144/94-CE dated 22.12.94 which denied the benefit of Notification to the appellants’ product.The notification No.144/94a-CE reads as under:-
“In the Table annexed to the said notification, against Sl. No.6,for the entry in column (3), the following entry shall be substituted, namely, –
“All goods, other than the following, namely,-
(a) products consisting of sheets of paper or paper board impregnated, coated or covered with plastics (including thermoset resins or mixtures thereof or chemical formulations containing melamine, phenol, urea or formaldehyde with or without curing agents or catalysts), compressed together in one or more operations; or
(b) products known commercially as “decorative laminates”.
2. Ld.Advocate submits that the Commissioner has given a wrong interpretation to the notification and has without any basis denied the benefit of the Notification No20/94 CE Dated 1.3.94 which clearly granted the benefit of Notification in terms os Sl.No.6 which is described herein below:-
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Sl.No. Description of goods Rate ------------------------------------------------------------------------------------------ "6. 4811.30 & All goods, other than products 4823.90 consisting of sheets of paper or paperboard (20% ad valorem) impregnated, coated or covered with plastics, compressed together in one or more operations"
She submits that there was no question of unjust enrichment also in the present case as they were entitled to refund for the excess amount paid by them without taking the benefit of the notification in existence.She submits that in terms of law, any benefit which has been taken away from a notification will have prospective effect and will not have retrospective effect so as to deny the benefit for the period during which the notification was in operation granting the benefit.Therefore, she submits that without any clarity in the order and without any basis, he has refused to grant the refund which was due to them.Likewise, the Assistant Commissioner’s Order also suffers from similar error.She submits that there is no dispute with regard to the description of the product for eligibility purpose under Sl. No.6 of Notification 29/94, hence the matter is required to be remanded for holding that they are eligible for benefit of Notification and refund amount is required to be granted to them.
3. Ld. D.R. Shri S.Arumugam reiterates the departmental view.
4. On a careful consideration, we clearly notice that the product in question was fully covered in terms of the Notification No.20/94 CE dated 1.3.94 and there is no dispute with regard to this point by the authorities.They have taken a view that the notification No.144/94-CE dated 22.12.94 took away the benefit of the notification by an amending notification.They have given retrospective effect to the notification/Such an approach is not permissible in law as the Notification itself does not state that it has got a retrospective effect.A notification which was inforce during the period was 20/94 dated 1.3.94 which granted partial exemption to the products and duty was legible at 20% ad valorem.The appellants have paid a higher duty in terms of the tariff, hence they filed refund application for the purpose of refund of the differential amount.There is no dispute about the refund application having been filed within time and the fact of amendment of notification, and therefore, the amended notification cannot be treated to have retrospective effect.It is well settled that an amending notification taking away the benefit of a notification will always have a prospective effect.In this regard, the hudgment rallied by the appellant in the case of Indye Chemicals Vs. CCE [1986 (25) ELT 318] will have full effect to the facts of the present case.
5. As regards the plea of the appellants that unjust enrichment is not applicable to the face of the present case, we are of the considered opinion that both the authorities have not examined this aspect of the matter and therefore, it is not proper for us to hodl that the amounts paid by the appellants for which they had claimed refund was not hit by the provisions of unjust enrichment in terms of the Apex Court judgment rendered in the case of Mafatal industries.As all the document are also not available and filed by the appellants in this regard, and no serious arguments have been made the counsel also on this point, therefore, we are of the considered opinion that the matter has to go back to the original authorities for de novo consideration of the aspect of unjust enrichment and in case if the appellants are able to establish that the duty elements has not been passed on to the consumers, then they are eligible for the benefit of notification.We hold accordingly.The impugned orders are set aside and matter remanded to the original authorities for de novo consideration only on the aspect of unjust enrichment.The appellant shall be given full opportunity of producing all documents and making submissions to justify their claim.Ordered accordingly.
(Pronounced in open Court on 11.05.2001)