TMI Blog1989 (2) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 80/80-CE during the period April to September, 1982 is admitted. But as the appellants paid duty knowing fully well that they were entitled to the exemption under the above notification and they had chosen out of the exemption notification, they were not at liberty to claim the benefit of the notification at a later date. In this connection, his findings and discussions as recorded in paragraph 3 of the impugned order are reproduced below :- This is a case where the appellants, fully knowing that they are entitled to the exemption had paid the excise duty and realised the same from their customers as a part of their sale price. Now they want to get back the excise duty portion a refund. In other words, they are trying to make double benefit out of Central Excise Duty. Once having received from the Customers and again getting back from the Government. On merits the submission of Mr. A. Talukdar are correct that for the purpose of determination of eligibility to the exemption under Notification No. 80/80 the clearance value of an assessee has to be determined exclusive of the excise duty. Therefore, their contention that their clearance value is Rs. 13.39 lakhs had to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of Smt. Zutshi, Shri Gopal Prasad has stated that declaration as per paragraph 3 of the aforesaid notification was required to be filed by those manufacturers who had not cleared any specified goods in the preceding financial year or had cleared any such goods for the first time on or after 1st day of August in the preceding financial year. He has argued that no such declaration was required to be filed by the appellants herein. 3. We have considered the records of the case and the arguments of both sides. The Collector (Appeals) has accepted the contention of the appellants that their clearance value was Rs. 13.39 lacs. He has also admitted the entitlement of the appellants to the exemption notification during the period April to September, 1982. In the Cross-Objection filed by the Revenue, it has been stated that the appellants were not required to pay Central Excise Duty in terms of the Notification No. 80/80-CE., dated 19-6-1980 and as such, duty paid by them was not Central Excise Duty. According to the Cross-Objection, the amount of Central Excise duty should not be deducted from the value of the clearances for the purposes of above notification. Based on the value cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 (Supra), it was held by this Tribunal vide paragraph 10 of the order that Unlike Court of Law (the High Courts and the Supreme Court) which, in their extraordinary jurisdiction, may decline to grant relief on the ground that it would amount to unjust enrichment of the claimant, the Tribunal, acting within the statute, has no power to deny relief on this ground, if relief is due on the merits of the dispute before it. The Central Excise Law does not authorise denial of relief on the score of unjust enrichment nor does it make refund of duty conditional on the relief being passed on to the ultimate consumer . In the decision reported in 1986 E.C.R. 40 (Cegat), this Tribunal held that The theory of unjust enrichment has been involved in considering claims coming up before the High Courts and/or the Supreme Court in exercise of their extraordinary jurisdiction under Article 226/Article 32 of the Constitution... that it is a factor being kept in view by the High Courts/Supreme Court in exercising writ jurisdiction does not lead to an inference that such a consideration has a place in dealing with a claim for refund of duty under Section 11B of the Central Excises Salt Act, 1944. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received from the Customers and again getting back from the Government....The appellants fully knowing well that they are entitled to the exemption had volunteered to pay the excise duty in order to realise it from their customers. Exemption is a special facility and concession granted by the Legislature on one reason or another. When the concession is not availed of at the right time, the same cannot be claimed at a latter date. The appellants would have cleared their products without payment of duty. However, they preferred to pay the duty so that their sale prices can go up. Since payment of excise duty in this case was voluntary and the appellants had chosen to opt out of the exemption notification they are not at liberty to go back at a latter date and claim to avail the exemption. They were bound by their earlier conscious and intentional act of not availing of the exemption. They cannot now get back the excise duty as a refund. On this ground I reject the appeal." 9. Now the question before us is as to whether the appellants can be allowed to enrich themselves when they have already passed on the incidence of the excise duty on the purchasers. 10. In the case of State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves unjustly. They are not entitled to claim the refund even under Section 72 of the Contract Act. Much less can they therefore, invite this Court to exercise its extraordinary, equitable and discretionary writ jurisdiction under Art. 226 of the Constitution in their favour. The law laid down by the Supreme Court on this subject is very clear and has been reiterated from time to time. (Emphasis supplied) 12. It is significant to note that under somewhat similar circumstances the Hon ble Supreme Court in Newabganj Sugar Mills v. U.O.I., AIR 1976 SC 1152 devised a new procedure to deal with such a situation and evolved its own scheme for the refund of the amount to the ultimate consumers and observed that the money charged in excess should go to the consumers who had ultimately paid the same. In that case the State Government had reduced the prices of levy sugar and the sugar mill owners challenged the validity of the said order by filing writ petitions before the Allahabad High Court. The High Court had admitted the petitions and granted stay of the operation of the order, on the mills giving bank guarantees for the excess prices that they would recover because of the stay order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointing the Receivers/Special Officer on the lines of the procedure adopted in the case of Newabgunj Sugar Mills v. U.O.I., supra and in accordance with the guidelines and direction given by the Hon ble Supreme Court in the case of Shri Shankar Dal Mills v. State of Haryana, supra. 15. Thus, from the above it is clear that the appellants who have already recovered from their customers the whole of the excise duty are not entitled to its refund since their claim for such refund in the words of the Bombay High Court, supra would amount to a fraud on consumers, and the society. 16. However, the controversy does not rests here. The further question that arises for consideration is as to whether the excise authorities or the Tribunal can decline to grant relief on the ground that it would amount to unjust enrichment. In my considered opinion the Law is clear that under the Central Excises and Salt Act this Tribunal acting within the statute has no power to deny relief on this ground, if relief is due on the merits of the dispute before it as held by this Tribunal in the case of Collector of Central Excise v. Decora Ceramics Private Limited., 1986 (24) E.L.T. 73 wherein it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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