TMI Blog1995 (12) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/88 in the High Court of Gujarat for granting relief in payment of Excise Duty and obtained an order that pending the decision they should pay 50% of the duty payable in cash and secure the balance 50% of duty by furnishing Bank Guarantee. The said Sp. C.A. however stood rejected by the High Court on 20-9-1989. Accordingly, the Bank Guarantees furnished were encashed on 5-3-1990. The assessment of RT 12 returns filed during the same period i.e. from October, 1988 to September, 1989 were provisionally assessed and order of final assessment was passed on 19-3-1990. It transpired that on finalisation of assessment, the duty worked out as payable was less than the amount initially paid in cash and collected by encashment of Bank Guarantee, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o beyond statutory provisions (e) against the decision of the Supreme Court in M/s. Oswal Agro Mills Ltd. v. Assistant Collector of Central Excise - 1994 (70) E.L.T. 48 (S.C.) relied upon by the appellant, there was a judgment from the same Court in Union of India v. Jain Spinners Ltd. - 1992 (61) E.L.T. 321 (S.C.) and refund could not be sanctioned except under Section 11B of the Act, (f) Provisions contained in Section 11D of the Act, would disentitle them to get the refund (g) Sanction of the refund claim would result into unjust enrichment to the appellants. In the appeal before the Collector (Appeals) the said order was confirmed. 3. Mr. J.C. Patel the ld. Advocate, for the Appellant has, while reiterating the contentions raised, ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be granted, without attracting the issue of unjust enrichment or bar of limitation. He has also pleaded that the Tribunal in their earlier order merely recommended the department to entertain the claim of the appellants and the same being non- issue, the recommendations of the type cannot be read in any other way. 4. Mr. V.K. Puri the ld. SDR has however submitted that the Supreme Court decision In Re : Oswal Agro Mills Ltd. is distinguishable, as in that case, no duty was held payable and the Bank Guarantees was given only as a security, whereas here, the Bank Guarantees were given towards part payment of duty amount. He also submits that the letter dated 20-6-1990 was addressed to the Superintendents and cannot be treated as proper c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the record, so far as the factual aspects are concerned, there is no dispute as to encashment of the Bank Guarantees and on finalisation of the assessment, there is surplus to the extent of Rs. 5,89,953/- with the department. There is also no dispute that the Bank Guarantees were given under the order of the Gujarat High Court. Reading of the said order clearly indicates that the Bank Guarantees were taken by way of security for the payment of duty if the same were held as payable by the appellants. 7. The Supreme Court had before them in M/s. Oswal Agro Mills Ltd. (supra) and identical issue where, under the directions from the Court, Bank Guarantee were furnished which were encashed by the revenue and they came to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been only to the extent of the amount recoverable from the assessee and not the full amount, which they have done. The amount recovered in excess of the duty payable would not be the one recovered as such by way of duty and taking the ratio of the decision of the Supreme Court referred to above, there would be no question of apply principles of unjust enrichment or other provisions of Section 11B and in this circumstances rejecting the claim of the appellants treating the said claim as the one for refund under Section 11B, is not justified. 10. The quantification of duty is done by the Superintendent vide his order dated 19-3-1990 and correctness of the same is not disputed by the department. 11. The Appellants have as early as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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