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2014 (5) TMI 767 - AT - Central ExciseRefund claim - Unjust enrichment - Period of limitation - amount due was not reflected in the books of account as claims receivable - Eligibility for the duty exemption - benefit of Notification NO. 67/95-CE dated 16-3-95 - Held that:- it is an admitted position that the appellant HPCL did not follow the procedure for payment of duty under protest prescribed in rule 233B of the Central Excise Rules, 1944 or other provisions prescribed at the relevant time. Having failed to do that they cannot claim that merely because they had challenged the assessment order dated 30-01-2002, the payment made much earlier to the assessment order should be deemed as “payment under protest”. It is a well-settled statutory principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other. Period of limitation - Refund arose consequent to the decision of the Tribunal dated 15-7-2005. - Held that:- The payments were made much before, that is during December 1998 to June 2001 and part of the payments were made in June and September 2002 and in July, 2003. The refund claim was filed only on 19-5-2008, that is about 3 years after the decision of the Tribunal and more than 5 years after the payment of duty. Thus the refund claim has been filed much after the stipulated period of one year under section 11B and hence they are clearly time-barred - Thus in respect of refunds which became payable, this time limit would apply. In the present case the claim was filed only on 19-5-2008 and the amended provisions would certainly apply in respect of such claims. Viewed from this angle also, the refund claim is clearly time-barred. Unjust enrichment - Held that:- Refund amount due was not reflected in the books of account of HPCL as claims receivable. This implies that the duty paid was shown as current expenditure and formed part of the Profit and Loss account of the assessee. Thus, if the claimant himself has treated the refund amount due as expenditure and not as “claims receivable”, the claimant cannot said to have passed the test of unjust enrichment. This is the settled position in law. The appellant has also contended that the appellant's goods are sold at prices determined by the Govt. and therefore, it should be presumed that the appellant has borne the incidence - “uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors”. Therefore, in the present case, the appellant HPCL has failed to cross the bar of unjust enrichment also and hence they are not eligible to claim the refund - Decided against assessee.
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