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2015 (9) TMI 1080 - AT - Central ExciseDenial of refund claim - Unjust enrichment - Provisional assessment - Bar of limitation - Held that:- refund claim is in respect of the clearances made during the period from 10.04.01 to 21.05.2001. However, it is not in dispute that the excess duty paid whose refund has sought had been paid on 19.04.2001, 30.04.2001 and 15.05.2001. The Assistant Commissioner has taken the date of clearance as the "relevant date" under section 11 B for counting the limitation period of one year and on this basis has held that the refund claim filed on 16.04.2002 is barred by limitation. However, in terms of definition of the term 'relevant date' in section 11 B, in the present case the relevant date would be the date of payment of duty. Since the excess duty paid whose refund has sought had been paid on 19.04.2001, 30.04.2001 and 15.05.2001, in our view, the refund claim of the duties filed on 16.04.2002 would be within limitation period. Respondents' plea is that though the duty initially had been paid on final price which was higher than the final price, the duty reimbursement received by them from the HPCL was only of the duty payable on the final price and not of the duty paid on the provisional price which was higher. If this is so, the bar of unjust enrichment would not apply. Just because the prices were not finalized by the respondents' customers within 3 to 4 months, the assessment cannot be treated as provisional, and, therefore, the limitation period prescribed under section 11B would be applicable for filing of the refund claim. Therefore, this refund claim had been correctly rejected as hit by limitation by the Assistant Commissioner and the Commissioner (Appeals) order holding that the same is not time barred is not correct. - Decided partly in favour of Revenue.
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