ORDER
V.K. Agrawal, Member (T)
1. M/s. Dynamic Laminates (India) Ltd. have filed the present appeal against the Order-in-Appeal No. 168/CE/CHD-I/2002, dated 30-4-2002 under which the Commissioner (Appeals) has rejected their refund claim.
2. Shri Rajesh Chibbar, learned Advocate, submitted that the Appellants, being registered with the DGTD, were not availing the benefit of Notification No. 1/93-CE, dated 28-2-93; that after the amendment of the said Notification by Notification No. 125/94-CE, dated 31-8-94 they became eligible to claim the benefit of Notification No. 1/93; that as the amendment was not noticed by them, they did not avail the benefit of Notification No. 1/93; that they filed a claim for the refund of excise duty on 9-8-85 for the period from 7-2-95 to 31-3-95; that the Assistant Commissioner, under Order No. 77/95, dated 1-12-95 rejected their refund claim on the ground that Notification exempted goods up to the aggregate value of first clearance of Rs. 75 lakhs and they had already effected clearance exceeding Rs. 75 lakhs up to 6-2-95; that a part of the claim relating to clearance made on 7-2-95 was beyond the time-limit specified in Section 11B of the Central Excise Act and the principle of unjust enrichment also applies; that the Commissioner (Appeals) also rejected their appeal on the ground that they continued to pay full rate of duly during the whole financial year 1994-95 and did not claim exemption under Notification No. 1/93. The learned Advocate, further, submitted that they were bound to pay the duty at full rate from the beginning of the financial year, i.e. 1-4-1994 as they were registered with the DGTD; that the first clearances in a financial year are basically to indicate the order for the purpose of availing the full exemption and partial exemption in terms of Paras l(a), (b) and (c) of the Notification; that the Tribunal in the case of Watts Electronics Pvt. Ltd. v. C.C.E., Kochi, 1994 (70) E.L.T. 127 (T) has held that the duty paid clearance before availing the SSI Notification “cannot be added for arriving at the value of the exempted goods up to Rs. 75 lakhs”. The learned Advocate has fairly admitted that the part of the claim is time-barred which is not challenged by the Appellants. However, regarding applicability of principle of unjust enrichment, the learned Advocate mentioned that they had issued credit notes to their customers and as such incidence of duty was borne by them; that as the issue of unjust enrichment was not raised in the Show-cause Notice, they could not make detailed submission. He, therefore, requested that the matter may be remanded to the jurisdictional Central Excise Officer so that the said aspect could be examined by him.
3. Countering the arguments, Ms. Neeta Lal Butalia, learned SDR, submitted that the decision in the case of Watts Electronics has been distinguished by the Tribunal in the case of Uttam Industries v. C.C.E, New Delhi, 2001 (130) E.L.T. 948 (T) wherein it has been held that once a manufacturer exercises the option for not availing of the benefit of the exemption contained in the Notification, he has to pay duty at the rate applicable on all subsequent clearances; that as the Appellant continued to pay duty at full rate, they had opted for not availing of the benefit of Notification No. 1/93, as amended and consequently, they have to discharge duty liability at full rate on all clearances during the financial year. The learned SDR also relied upon the decision in the case of C.C.E., Kanpur v. Flock (India) Ltd., 2000 (120) E.L.T. 285 (SC) and contended that as the Appellants had not challenged the assessment & C/List, they cannot file the claim for refund of duty.
4. We have considered the submissions of both the sides. It has not been disputed by the Revenue that the Appellants were not eligible for the exemption contained in Notification No. 1/93-CE before its amendment by Notification No. 125/94-C.E., dated 31-8-94. As such the question of their opting not to avail of benefit of exemption under Notification No. 1/93 was not there at the beginning of the financial year i.e. from 1-4-94. The appellants claim to have become entitled for SSI Notification only with effect from 31-8-94 and the fact was not noticed by them immediately after the issue of Notification No. 125/94-CE. Accordingly, it cannot be said that they had exercised the option “for not availing of the benefit of the exemption contained” in the Notification. Thus the ratio of the decision in the case of Uttam Industries v. C.C.E, relied upon by the learned SDR, has no application in the present matter. It is also not the case of the Revenue that after the notification No. 1/93-CE was amended by Notification No. 125/94-CE, the Appellants filed a C/List and not claiming the benefit under the amended Notification, For the reason, the ratio in the case of Flock (India) Pvt. Ltd. will also not apply, as there was no adjudication by the Department. It is also well settled that the benefit of an exemption Notification can be claimed subsequently. We, therefore, hold that the refund claim is available to the appellants subject to applicability of principles of unjust enrichment and time limit. The learned Advocate has pleaded that as aspect of unjust enrichment was not raised in the Show-cause Notice, the Appellants could not produce the sufficient evidence. We, therefore, remand the matter to the jurisdictional Adjudicating Authority for considering the question of applicability of principle of unjust enrichment after affording a reasonable opportunity of hearing to the Appellants.