Page 129 - ELT_15th August 2020_Vol 373_Part 4

2020 ] 3F INDUSTRIES LIMITED v. ASSTT. COMMR. OF CUSTOMS, NAGAPATTINAM 463

5-11-2012 on payment of duty. More-so, when clearance and supply of dutiable
goods is accepted and there is no denial to the fact that a purchase order existed
for supply of dutiable goods, on mere assumptions the intention cannot be de-
termined or it can be concluded that the conduct was fraudulent. The authorities
have also not appreciated the difference in manufacture and clearance of goods.
11. In view of the findings of fact recorded by the Tribunal, it cannot be
concluded that WCL till 4-11-2012 was indulging only in manufacture of ex-
empted goods. No perversity has been pointed out in the order.
12. No interference is called for in the order of the Tribunal.
13. The appeals are dismissed.

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2020 (373) E.L.T. 463 (Mad.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dr. Anita Sumanth, J.
3F INDUSTRIES LIMITED
Versus
ASSTT. COMMR. OF CUSTOMS, NAGAPATTINAM
W.P. No. 8055 of 2018 and W.M.P. No. 10041 of 2018, decided on 10-12-2019
Adjudication - Remand proceedings - Refund - Issue remanded by
CESTAT for examining documents to prove that incidence of duty not passed
on to consumer - However, Assessing Authority completely lost sight of exer-
cise and proceeded merely on the basis of accounting entries, methodology of
accounting followed by petitioner and as to whether duty reflected in ‘receiv-
ables’ or ‘profit and loss’ accounts. [paras 5, 6, 7]
Refund - Unjust Enrichment - Evidence - Refund of differential duty
remitted on imported Palmolein oil - Assessee pleading incidence of duty not
been passed on to consumer as sale completed in August 2001, and differential
duty remitted, under protest, in September, 2001 - HELD : Copy of sales regis-
ter showing quantity of 2479.03 metric tons of product sold in August, 2001 -
Credit invoices issued during month of August, 2001, tally with sales register -
Cost break-up of product reveals sale value, and duty in relation to goods,
without inclusion of differential duty remitted - Also, profit and expenditure
elements on par with claim of petitioner for previous and subsequent years -
Facts itself clear to establish position that incidence of duty not been passed
on to customer - Impugned order is set aside - Section 11B of Central Excise
Act, 1944. [paras 9, 10]
Interest - Delayed refund of differential duty remitted under protest -
Import of Palmolein oil - HELD : Only refund claimed on the ground that a
provision in terms of which it is levied is unconstitutional would stand out-
side purview of Section 27A of Customs Act, 1962 - Dispute herein relating to
whether Notification No. 36/2001-Cus. (N.T.), dated 3-8-2001 enhancing rate of

EXCISE LAW TIMES  15th August 2020  129