TMI Blog2009 (7) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... as to why the said refund claim should not be rejected as inadmissible by applying the doctrine of unjust enrichment; that on adjudication, the said refund claim was rejected basing on the Apex Court s decision mentioned supra. 2. Being aggrieved by the above order, the appellant has come up with the present appeal. The contentions of the appellant are summarized as under :- (i) that the Apex Court has, time and again, held like in the case of Kamalaxi Finance - 1991 (55) E.L.T. 433 that the lower authorities are bound to follow decisions of the higher authorities and the Assistant Commissioner has just discounted the decisions brought to his notice with sole purpose of disallowing the refund on any account whatsoever; (ii) that during the course of investigation, though nothing was due, the department required the appellant to deposit Rs. 73,78,283/- on the ground that there were certain alleged clandestine removal of goods from the DTA unit but the fact on record demonstrated beyond a doubt that the goods alleged to be clandestinely removed were actually manufactured by the EOU unit and exported from there on behalf of the DTA unit; (iii) that such extraction of the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed; (xiii) that when the alleged clandestine removal proves to be illusory, and it is found that the goods alleged to be clandestinely removed are the goods which are cleared from the EOU for export, there is no question of any clandestine removal in the local market and in such circumstances, the question of recovery of any duty from such presumed customers cannot be raised; (xiv) that the Assistant Commissioner has failed to appreciate that the goods in question were exported and were duly accounted for and were not clandestinely removed ; (xv) that but the very basis of administration of justice requires that the lower authority to follow the judgments of the higher authority, instead of challenging the basis of such judgments; (xvi) that even the decision of M/s. Bata Shoe Company Pvt. Ltd. relied upon by the Assistant Commissioner could have no application to the facts of this case in as much as even that case, duty was paid at the time of removal of goods and not subsequently; (xvii) that it it is absurd to suggest that the minute there is a book entry, that amounts to passing on the duty burden and once the amount is paid it is bound to be recorded in the books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand was sought to be raised on DTA unit on the ground that they cleared the excisable goods without payment of duty; that the department has further sought to raise the demand on EOU unit also with regard to duty on inputs received by it without payment of duty on the ground that there is a violation of terms of Notification No. 1/95-C.E. dated 4-1-1995 which permits the EOU to obtain the inputs without payment of duty; that it appears that both the units manufacture automatic grills; that based on the Cost Audit Report and the Turnover figures (arrived at between the Excise records and the appellant s Books of accounts ), it was alleged that the DTA unit has cleared some quantities clandestinely; that on adjudication, the Commissioner, vide his O-I-O No. 2/CEX/2007 dated 31-1-2007 confirmed the demand raised in the SCN-Cum-Demand Notice along with interest and imposed equal penalty; that on an appeal before the CESTAT, the appellant got favourable order; that the Hon ble CESTAT vide its Order No. A/786-788/2008/CII/EB dated 16-9-2008 allowed the appeal by setting aside the Commissioner s order holding that there is absolutely no evidence to support the charge of clandestine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontentions of the appellant are correct. While allowing the appeal, the Hon ble CESTAT held at various places in its order that the goods were manufactured and exported by the EOU. Once the goods are exported, the question unjust enrichment does not arise. Without understanding the basic principle which governs the principle of unjust enrichment, the Assistant Commissioner has rejected the refund claim under the shelter of the Apex Court decision mentioned supra. As already held the Apex Court has laid down the principle that each refund claim filed under Section 11B should undergo the test of the principle of unjust enrichment which does not mean that the refund will be rejected basing on the said decision. In the instant case, first one has to apply the principle and secondly, has to find out the facts of the case and then come to the conclusion as to whether the refund is hit by the principle of unjust enrichment or not. In the instant case, since the goods in question were manufactured and exported by the EOU unit, the principle of unjust enrichment itself is not applicable as contained in Section 11B. Therefore, the reliance placed by the Assistant Commissioner by rejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that the appellant has debited the said amount at his own account and not at any customers account. Hence, as contended by the appellant, it is clear that the Assistant Commissioner has pre-determined to reject the refund claim. 4.4 Another documentary evidence which proves that at any cost he does not want to sanction the refund, is that the time given in the SCN. Normally, 30 days time is given for defending any case. But in the instant case, strangely, only 7 days time was given to defend the case to the appellant. This is against the principle of natural justice. 5. In addition to the above, the appellant also gets the support from the following decisions relied upon by the appellant :- (a) Mahavir Aluminium Ltd. v. CCE, Jaipur - 1999 (114) E.L.T. 371 (S.C.), (b) Gujarat State Fertilizers Chemicals Ltd. v. CCE, Vadodara - 2005 (186) E.L.T. 607 (Tri. - Mumbai), (c ) Pricol Ltd. v. CCE, Coimbatore - 2007 (213) E.L.T. 41 (Tri.- Chennai), (d) CCE, Mumbai-I v. Mitesh Brothers - 2008 (225) E.L.T. 223 (Tri.- Mumbai) (e) CCE, Pune-I v. Andor Powertron Ltd. - 2008 (223) E.L.T. 305 (Tri. - Mumbai) 6. In view of the above, the refund is not hit by the prin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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