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2021 (11) TMI 783 - CESTAT CHENNAIRefund of Excise Duty, paid under protest - goods are sold as waste and scrap - appellant submitted that since the goods are cleared as ‘waste and scrap’, they are not liable to pay duty - time limitation - principles of unjust enrichment - HELD THAT:- The litigation with regard to the demand raised in the Show Cause Notice dated 06.08.2009 has continued till 27.02.2018 whereby the Commissioner (Appeals), Coimbatore has set aside the demand, interest and penalties confirmed in the Order-in-Original. Though after the first adjudication and consequent appeal (whereby the demand was set aside), the appellant ought to have filed the refund claim within a period of one year, since the Department has adjudicated the Show Cause Notice for a second time and confirmed the demand again, it cannot be said that the refund claim filed by the appellant is time-barred. The refund claim is filed within one month after passing of the second Order-in-Appeal which is dated 27.02.2018. The claim having been made within one year from the date on which the demand was set aside by the Commissioner (Appeals) finally, the rejection of refund claim as time-barred under Section 11B of the Central Excise Act, 1944 is not justified. Moreover, the amount having been paid as duty pursuant to the Show Cause Notice, the question of unjust enrichment does not arise. There are no hesitation to hold that the appellant is eligible for the refund - appeal allowed - decided in favor of appellant.
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