9911796707
TMI Blog2001 (6) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... vy sugar on the basis of the price fixed by the Central Government as per orders issued under Section 3(3)(c) of the Essential Commodities Act, 1955. They, along with many other sugar manufacturers, challenged the price fixation before the Allahabad High Court in writ petitions and the High Court, by interim order dated 21-1-1980, fixed the prices for different grades of levy sugar. The appellants paid duty on the levy sugar for the aforesaid period on the basis of the price so fixed by the High Court. The High Court's decision was taken up in appeal before the Supreme Court. The Apex Court, by its judgment, dated 22-9-1993, directed the Central Government to refix the price of levy sugar for the above periods. Accordingly, the Central Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessment of duty on levy sugar for the aforesaid period should be considered as provisional assessment, having regard to the fact that the question of fixing the price of levy sugar was sub judice. The provisions of unjust enrichment under Section 11B(2) were not applicable to a case of provisional assessment, Counsel submitted. In this connection, he relied on the Tribunal's decisions in the cases of CCE, Chennai v. T.V.S. Suzuki Ltd. [1999 (34) RLT 668] and G.K.N. Invel Transmissions Ltd. v. Commissioner of Customs [2001 (42) RLT 711]. Therefore, according to ld. Advocate, the refund claim of the appellants was not to be rejected on either of the two grounds. 4. Ld. JDR, Shri Swatantra Kumar reiterated the findings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities rejecting the refund claim. 5. Considered the submissions. The primary question arising for consideration is whether the limitation provisions of Section 11B of the Act were applicable at all to the appellants' case. The payment of duty at the higher rate on levy sugar was made by the appellants for the material period in pursuance of the interim order passed in January, 1980 by the Allahabad High Court. The Central Government refixed the price of levy sugar for the said period pursuant to directions of the Apex Court. It was consequent upon such refixation of price that the payment made by the appellants for the said period turned out to be in excess by an amount of Rs. 3,53,502.47. The refund claim was filed on 16-10-1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not stand to reason. Once the payment of duty is accepted to be a payment under protest for any purpose of Section 11B of the Act, it would be a payment under protest for all purposes of that Section. One of the provisos to Section 11B(1), which is there in the statute book ever since the Section itself came into force, enacts that the limitation of six months shall not apply where any duty has been paid under protest. In the appellants' case, the payment of duty was under protest in view of Mafatlal Industries (supra). The 'under protest' nature of the payment has been accepted by the Commissioner (Appeals) too. Therefore, the period of limitation prescribed under Section 11B(1) was not applicable to the appellants' refund claim. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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