TMI Blog2011 (7) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... und of the excess amount of duty without time-bar - Even if it is assumed to the contra, the decision would go in favour of the Revenue for want of evidence against the bar of unjust enrichment - appeals of the Revenue are allowed - E/197/04, E/410/04, E/412/04, E/557/04 - A/648-653/2011-WZB/C-II(EB) - Dated:- 5-7-2011 - Mr. P.G. Chacko, Mr. P.R. Chandrasekharan, JJ. Shri K. Lal, Authorised Representative (SDR), for Revenue Per: P.G. Chacko There is no representation for M/s. Eastern Coalfields Ltd. despite notice nor any request of theirs for adjournment. M/s. Western Coalfields Ltd., not represented today, have made an application for adjournment on the ground that certain appeals involving similar issue are pending be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een so rejected on the ground that the incidence of duty had been passed on, in one case, to WCFL and, in another case, to ECFL. 4. WCFL and ECFL subsequently filed refund claims, which came to be rejected on the ground of time-bar and on the further ground of unjust enrichment. Aggrieved, both the parties preferred appeals to the Commissioner (Appeals), who, in the case of each appeal, held that the refund claim was not time-barred though barred by unjust enrichment. 5. Against the adverse part of the appellate Commissioner s decision, WCFL and ECFL preferred the present appeals to this Tribunal, wherein their contention is that their refund claims are not barred by unjust enrichment. The department s appeals before us are against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f coal (final product) was constant in the form of administered price, there is no question of passing of burden of the element of Central Excise duty to any other person. In this connection, the learned SDR submits that it is settled law that the constancy of price is no ground against the bar of unjust enrichment. In this connection, he has relied on CCE, Mumbai-II vs. Allied Photographics India Ltd. 2004 (166) ELT 3 (SC), wherein it was held, inter alia, that uniformity in price before and after assessment would not lead to inevitable conclusion that the incidence of duty was not passed on to the buyer as such uniformity might be due to various factors. 7. Moving the appeals of the Revenue, the learned SDR submits that the refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is whether the protest registered by ICL (manufacturer/supplier) at the time of payment of duty on the conveyor belts supplied to WCFL and ECFL can be relied on by the latter in the context of claiming refund of the excess duty. In other words, the question is whether the buyers can step into the shoes of the manufacturer and claim the benefit of the protest of the latter. This question is no longer res integra. The Hon ble Supreme Court in the case of Allied Photographics (supra) settled it in favour of the Revenue. Neither WCFL nor ECFL has a case that they assumed duty burden under protest. Their only contention is that the payment of duty under protest by the manufacturer/supplier would constitute a ground for them to claim refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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