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2003 (9) TMI 84 - SC - Central ExciseWhether the Tribunal had misconstrued paragraph 108(iv) of the decision of this Court in Mafatlal Industries (1996 (12) TMI 50 - SUPREME COURT OF INDIA) and that paragraph did not in any way preclude an application for refund being made in respect of duties paid under protest? Whether in any event this Court in Sinkhai Synthetics & Chemicals (P) Ltd. v. Collector of Central Excise, Aurangabad [2002 (4) TMI 65 - SUPREME COURT OF INDIA] has held that Sections 11A and 11B did not apply to duty paid under protest? Held that:- The Tribunal's appreciation of the relevant paragraph in Mafatlal Industries (supra) was correct. The "cause of action" of the appellant would arise only after the final dispute regarding the classification list had been settled by this Court. That was done as recently as on 28-8-2003. The application for refund by the appellant was therefore premature. We have noted the proviso to sub-section (1) of Section 11(B) which says that the period of limitation of one year prescribed under sub-section (1) will not apply in case duties are paid under protest. The question then is from which date will the period of limitation start to run? It appears on the basis of the paragraph of Mafatlal Industries decision which has been relied upon by the Tribunal it would have to be from the final decision in the assessee's own case. As the second submission is concerned, the submission does not appear to have been raised before the Tribunal at all by the appellant/assessee. Indeed the Tribunal did not address itself to the question of unjust enrichment having rejected the appeal of the appellant on a point of demurrer namely, the maintainability of the application for refund. Now that the dispute regarding the classification list has ultimately been resolved, it would be open to the appellant to raise the issue of unjust enrichment before the Tribunal. It is open to the Tribunal to decide the issue on remand as to whether the Departmental authorities were right in holding that the appellant was not in fact entitled to claim for refund and whether the decision in Sinkhai Synthetics & Chemicals (P) Ltd. would be applicable to the appellant's case.
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