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2013 (3) TMI 210 - AT - Central ExciseRefund claim in respect of the quantum of excess production of sugar - Duty paid on the clearances of sugar at the full rate - whether this refund claim would be subject to the bar of unjust enrichment under Section 11B - exemption Notification No. 132/82-C.E., dated 21-4-1982 invoked - Refund claim pertains to the period from May, 1982 to September, 1982, since it had not been sanctioned till 19th Sept., 1991 - Held that:- According to sub-section (3) of Section 11B notwithstanding anything contrary contained in any judgment, decree, order or direction or any court or any other provision or Rules no refund shall be made except as provided in sub-section (2). Sub-section (3) of Section 11B is a non-obstante clause whose provisions shall have overriding effect. According to the sub-section (2) of Section 11B, except for the exceptions (a) to (f) mentioned in the proviso to sub-section (2) of Section 11B, in all other cases, the duty amount refundable shall be credited to the Consumer Welfare Fund. Rebate in respect of excess production of sugar during lean season in terms of Notification No. 132/82-C.E. is not mentioned among the exceptions. Clause (d) of proviso to Section 11B(2) covers those cases when the incidence of duty paid by the manufacturer had not been passed on to any other person. Thus, for claiming the refund of excess duty paid, the assessee has to prove that the incidence of duty whose refund has been claimed has been borne by him and had not been passed on to any other person. In view of the non-obstante clause of sub-section (3) of Section 11B, all the refund claims made during the period w.e.f. 20-9-1991 would be subject to the principle of unjust enrichment. As decided in Sahkari Khand Udyog v. CCE reported in 2005 (2005 (3) TMI 116 - SUPREME COURT OF INDIA) with regard to the grant of rebate in respect of excess production of sugar in terms of the Notification No. 108/78-C.E. held that the same would be subject to the principle of unjust enrichment. In view of this judgment irrespective of the purpose for which the duty exemption had been granted under Notification No. 132/82-C.E. in respect of the excess production of sugar during the lean period from May, 1982 to September, 1982, the refund on account of this exemption notification would be subject to the principles of unjust enrichment. The impugned order is not correct. Revenue’s appeal is allowed.
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