TMI Blog1999 (10) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... oneously. 2. Briefly stated facts are that the Appellants removed the excisable goods at the effective rate of duty awaiting approval of their classification list No. 2/88 in which they had claimed the benefit of Notification No. l75/86-C.E., dated 1-3-1986; that in pursuance of the approval of the classification list, the Range Superintendent allowed the refund of excise duty for the month of April, 1988 to August, 1988. Subsequently a show cause notice dated 22-2-1989 was issued for recovery of amount erroneously refunded. The Assistant Collector confirmed the demand amounting to Rs. 2,36,515.55 under his Adjudication order dated 8-2-1990, applying the principles of Unjust Enrichment following the decision of the Bombay High Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein of excess duty shown to have been paid on assessment of RT 12 Returns by the Range Superintendent was correct in law in terms of Rule 173 (2). The Tribunal also held that no separate refund applications were required in terms of Section 11B of the Central Excises and Salt Act, 1944 when it was merely a case of assessment of RT 12 Returns under Rule 173-I in terms of approved classification or price list. He also relied upon the decision in C.C.E., Jamshedpur v. Usha Beltron Ltd. [1999 (109) E.L.T. 1006 (Tribunal) = 1996 (13) RLT 237 (T)] wherein it was held that Rule 173-I does not envisage separate application tor refund and where the Superintendent fails to make suitable endorsement and assess the return authorising the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moreover the said paragraph refers to limitation and was not referring to the applicability of doctrine of unjust enrichment. He also mentioned that the Act and Rules do not provide any definition for erroneous refund; the erroneous refund could be made for various reasons and it need not be confined to only mistake in assessment; that the Andhra Pradesh High Court in the case of Smith, Klims Beechan Consumer Brands Ltd. v. Assistant Collector, Central Excise - 1993 (67) E.L.T. 469 (AP) has held in a case where refund has already been made and adjusted in PLA, that refund was erroneous as the Petitioner has passed on the incidence of duty to the Customer and Assistant Collector has jurisdiction to issue the show cause notice under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund into Consumer Welare Fund if the incidence of duty has been passed on to any other person. The issue involved is whether refund was admissible or not and as it was felt by the Revenue that refund of duty was not payable to the Appellants, a notice for erroneous refund was issued. It cannot, therefore, be said that the provisions relating to unjust enrichment are being made applicable to Section 11A of the Act. The Andhra Pradesh High Court in Smith Klims Beechan Consumer Brands case, (supra) was dealing with such a situation only and held as under : It is true that the Supreme Court was considering a case where an application for refund is pending whereas in the present case, the refund has already been effected. However, Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the incidence of such duty to any other person. (Emphasis supplied) Further, in Sulekha Works Ltd., (supra) the issue involved was whether separate refund applications were required in terms of Section 11B of the Act when it was merely a case of assessment of RT 12 Returns under Rule 173-I in terms of approved classification or price list. The Tribunal did not consider the issue as to whether provisions of unjust enrichment wil1 be applicable to such refund. The issue was dealt with by the Tribunal in Vidula Chemicals Manufacturing Industries case, relied upon by the ld. DR. The Tribunal held as under : The above said sub-section (2) was substituted by the Central Excise and Customs Law (Amendment) Act, 1991 with effect from 20- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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