ORDER
T.K. Jayaraman, Member (T)
1. This is an appeal filed against OIA No. 138/2003-C.E., dated 7-10-2003 passed by the Commissioner of Central Excise (Appeals) II, Bangalore.
2. The appellant purchased a scraped TV Plant (a) from M/s. BEL for Rs. 30 lakhs. They paid an additional sum of Rs. 4,80,000/- as excise duty. They felt that the item purchased by them is liable to be classified under sub-heading 8525.25 attracting nil rate of duty as per Notification No. 6/2000, dated 1-3-2000. Hence they filed refund claim with the jurisdictional Assistant Commissioner. The Assistant Commissioner rejected the refund claim. Therefore, The appellants approached the Commissioner (Appeals). The Commissioner (Appeals) passed the impugned order upholding the Assistant Commissioner’s Order. Aggrieved over the impugned order of the Commissioner (Appeals), the appellants have come before this Tribunal for relief.
3. Mr. Ghanshyam Das, Proprietor of the appellant Company appeared for the appellants and Shri S. Reddy learned DR appeared for the Revenue.
4. Shri Ghanshyam Das submitted that they are not liable to pay duty. They also paid the duty under protest. Hence, there cannot be any time bar. Further he said that the appellant firm had borne the central excise duty and therefore there is no question of unjust enrichment. Hence, he requested the Bench to pass a favourable order.
5. Learned SDR submitted that the refund claim is clearly barred by limitation because the duty was paid between 9th January, 2001 and 8th September, 2001 but the refund claim was filed on 17th December, 2002. He further said that appellants had sold the scrapped plant purchased and he has not shown any evidence that the duty has not been passed on to the buyer.
6. We have gone through the records of the case carefully. The issues involved in this appeal are as follows:
(1) Whether the scrapped plant purchased by the appellants is liable to payment of duty at 16% under Heading 7204.30 or classifiable under 8525.00 attracting nil rate of duty under Notification No. 6/02.
(2) Whether the duty incident has been home by the appellant.
(3) Whether the refund claim has been filed in time.
The Original Authority had dealt with all the three issues in his order. The appellant accepted the tender conditions stipulated by M/s. BEL, classified the goods under Heading 7204.30 and removed them to the Company after payment of duty. It is not for the appellants to challenge classification. The appellants dispute the classification made by BEL. In that case, they should have taken up the matter with M/s. BEL even before purchase of the same. We find that the appellants do not have any locus standi to file the refund claim. Assuming that duty had been collected illegally, it is clearly seen in the findings of the adjudicating authority that the question of unjust enrichment on time bar would stand in the way of the appellants being entitled for the refund claim. The appellants who appeared before us in the Tribunal could not produce any documentary evidence to show that duty had been paid under protest. In view of this position, we reject the appeal.
(Pronounced in open Court on 6-10-2005)