TMI Blog2011 (4) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... NGC against a common Order-in-Appeal No. 225 226/2009/MCH/ AC/Gr.VA/2009 dated 24.08.2009 against rejection of the refund claim involving an amount of Rs.7,16,023/- and an amount of Rs.15,847/- respectively. 2. In case of Appeal No. C/1139/09 amount involved is Rs.15,847/-, which is below Rs.50,000/-. Since the appeal is against a common Order-in-Appeal, this is admitted and taken up with the other Appeal No. C/1138/09. 3. The facts of the case are that the appellant filed a refund claim of Rs.7,16,023/- in first case and Rs.15,847/- in the second case for excess duty paid by them. In both the cases, refund of excess duty paid was claimed on the basis of availed trade discount of 5% on the invoice value. The duty was paid on the val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Hon'ble Karnataka High Court s judgment in the case of Karnataka State Agro (supra) has held that bar of unjust enrichment is not applicable to the PSU. 5. On applicability of the bar of unjust enrichment to PSU, the Counsel submitted that in the case of Cement Corporation of India Vs. Commissioner of Central Excise, Rohtak 2007 (219) ELT 329 (Tri-Del), in para 6 of the order, it was held that judgment of the Hon'ble Karnataka High Court is in context of State Government unit producing items and supplying them to State Govt. authorities for free distribution and is not applicable to the commercial enterprises selling products to the buyers for money. This order was also confirmed by the Hon'ble Supreme Court in which a petition fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her person, therefore, their claim is not hit by the unjust enrichment clause. He further submits that these claims pertain prior to 1995 and ONGC, at that time, was totally controlled by the Govt. of India and as such, the bar of unjust enrichment should not be applied. 8. The learned Counsel also submitted a Chartered Accountant s certificate dated 31.3.2001 in support of their contention that amount involved in the refund claim was not passed on to the customers. 9. Learned SDR, appearing on behalf of the Revenue, submits that in their own case of ONGC reported in 2003 (156) ELT 794 (Tri-Del), it has been held by the Tribunal that bar of unjust enrichment is applicable for refund of duty on capital goods or any captive consumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny ground for non-applicability of unjust enrichment to their case. On the certificate of Chartered Accountant produced by the Counsel for the appellant during the course of hearing, learned SDR submitted that they did not file these arguments before the Assistant Commissioner or before the Commissioner (Appeals). It is too late to produce the document at the appellate stage. Therefore, he contended that the order passed by the Commissioner (Appeals) is correct and does not require any interference. 11. After hearing the both sides and on going through the case records, I find that the goods involved in these cases are capital goods as contended by the appellant in their appeals. Both the refund claims have been rejected by the lower au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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