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TMI Blog2009 (11) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... njust enrichment. 2. Refund of Rs. 45,65,419/- is relating to the period March, 2000 to October, 2000. Respondent had made payments of such sum to exchequer in December. 2000, February, 2001 and March, 2001. So far as refund claim of Rs. 92,28,482/- is concerned, that amount relates to the period from November, 2000 to March, 2003. Ld. Commissioner on the basis of the evidence of Chartered Accountant's certificate. Balance sheet and Ledger Accounts came to the conclusion that the Respondent having pursued its claim for refund before various appellate forums, there was payment of above amounts made under protest and such act was treated as receivables by the Respondent. Upon examination of the record, he came to the conclusion that when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material to decide the limitation. He supports the order of the adjudication even on the ground of bar of unjust enrichment submitting that the Respondent was collecting excise duty for sometime and the grounds of the revenue that necessary documents showing the sale bills were not produced for consideration. He prays that the order passed by the ld. Commissioner is to be reversed and the adjudication order to be restored. 4. Ld. Counsel. Shri Ramesh Nair on behalf of Respondents submits that examination of both of the refund claims was done by the ld. Commissioner (Appeals) and that too such examination was done on it-touch stone of law laid down by the Apex Court in Mafatlal Industries v. Union of India reported in 1997 (89) E.L.T. 247 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment, the Respondent succeeded before the learned Appellate authority below. Today, Revenue having no material to interfere to the first Appellate authority's order, that order should sustain without any interference. 6. Heard both sides before the lunch break and after lunch break and thorough examination of record on the issue of limitation as well as bar of unjust enrichment was made. We are fully satisfied that the ratio laid down by the Apex Court in para 83 v to 86 in the case of Mafatlal judgment reported in 1997 (89) E.L.T. 247 (S.C.) is applicable to the case in hand. For the convenience of reading and appreciation of the merits of case, we reproduce those paragraphs hereunder :- "83. It is then pointed out by the learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. If one reads the second proviso to sub-section (1) of Section 11B along with the definition of "relevant date", there is no room for any apprehension of the kind expressed by the learned Counsel. 84. It was then submitted that Rule 233B which prescribes the procedure to be followed in cases where duty is paid under protest requires the assessee to state the grounds for payment of duty under protest and that it may well happen that the authority to whom the letter of protest is submitted may refuse to record it, if he is not satisfied with the grounds of protest. In our opinion, the said apprehension is not well-found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him. 86. We may clarify at this stage that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B." 7. On careful reading of the aforesaid ratio laid down by Apex Court, we are of the view that decision was made under Rule 233B of the Central Excise Rules 1944, but such ratio holds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck Industries - 2004 (170) E.L.T. 293 (Tribunal-Mumbai) was on different context. 9. When the law laid down by the Apex Court itself decides the limitation issue in the manner indicated as above, we have nothing to say more on such issue but to allow the order of the learned first Appellate Authority to remain untouched on such count. 10. So far as the point of unjust enrichment is concerned, it has been a followed practice by Tribunal for some time past to rely on the Chartered Accountant's certificate and that has been followed by the Tribunal in the case of MRF Ltd. v. CC (Port). Kolkata reported in 2008 (225) E.L.T. 246 (Tribunal-Kolkata). But we are not halting at this stage. We have still gone on examining the issue carefully and un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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