TMI Blog2005 (7) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Chapter 85 of CET. 3.The appellants had filed a classification list No.CL/GW/36/93-94 dated 2-5-94 for the product Electroplating Plants and Equipments under Chapter Heading 8543.00 and claimed concessional rate of duty at 10% ad valorem under Notification No. 51/93 dated 28-2-93. A show cause notice was issued seeking to deny concessional rate. The said classification list was however approved by the Assistant Commissioner of Central Excise, vide Order-in-Original No. 57/93/AC/DN VII dated 22-6-1993 allowing the concessional rate as claimed. Meantime, the Appellants were paying duty at full rate, without availing of the benefit of the aforesaid notification, under protest and claimed the refund of excess duty paid on 9-2-94. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arising out of finalisation of provisional assessments. 7.In the Allied Photographics cited supra the Hon ble Supreme Court referred to its decision in Mafatlal Industries Limited reiterated that provisions of Section 11B are not applicable to refunds arising out of finalisation of Provisional Assessment under Rule 9B of Central Excise Rules. In Allied Photographics the Supreme Court brought out the difference arising out of duty paid under protest and out of finalisation of provisional assessments. The former types are covered under Section 11B and the later under Rule 9B of Central Excise Rules. It was argued that the refund in the present case arose out of the finalisation of provisional assessments, the authorities below erred in appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been passed on to their customers is not acceptable in the light of the Tribunal s decision in the case of S. Kumar cited supra. 9.Heard both sides. 10.The appellant filed a Classification List for their product Electroplating Plant and Equipment seeking classification under Chapter Heading 85.43 read with Notification No. 51/93 which accorded a concessional rate of duty of 10% on those goods. The Department issued a show cause notice asking the assessee to explain why the concessional rate of duty should not be denied. On receipt of this notice the appellant started paying full rate of duty (25%) on the clearances under protest. In due course the show cause notice was adjudicated and the classification list was finally approve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants adopted the method of paying duty under protest to safeguard their own interest in case the concessional rate as claimed is ultimately rejected. But the net result of all this is that the payments are made both under protest as well as under provisional assessment. It is therefore, necessary to examine whether provisions of Section 11B apply to the claim for refund in this case. 14.Over the years the Supreme Court has varied its stand on the issue of unjust enrichment. In the case of Mafatlal Industries supra, it is held that bar of unjust enrichment does not apply to duty paid on goods captively consumed and duty collected without authority of law or unconstitutionally. Both these exception were rejected in Solar Pesticides - 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t founded upon any contract or tort but upon a third category of law, namely quasi-contract or the doctrine of restitution. 16.Referring to the decision in Mafatlal the court observed that refund of tax/duty wrongly paid can be claimed on the basis for doctrine of equity and a person demanding such restitution must plead and prove but he had paid such tax/duty and had suffered loss/injury. The burden is on the claimant to prove that tha tax/duty paid by him is not passed on to the customer or third party and that he is entitled to restitution. We reproduce these passages from the decision to emphasise the fact that the highest court gives emphasis on the issue of whether or not a person is entitled to restitution rather than the nitty gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectly in conflict with the Supreme Court s decision in Sahakari Khand Undyog Mandal cited supra. The plea that credit notes raised by them in favour of the buyers prove that incidence of duty has not been passed on is in conflict with the Tribunal s decision in S. Kumar cited supra. It is not understood why an assessee who has passed on the incidence of duty to the buyer takes the trouble of raising a credit notes in favour of the buyer and then claims the refund of duty instead of advising the buyer to apply for a refund if he has not passed on the incidence of duty to his buyer. Section 11B has an elaborate machinery for the buyer to claim a refund. The fact is that an assessee who has passed on the incidence of duty becomes functus offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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