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TMI Blog2015 (4) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... on rate becomes payable on the condition that an officer not below the rank of Deputy Secretary in the Ministry of Environment and Forests (MoEF) certifies that the goods manufactured are meant for pollution control purpose. The dispute arose as to whether the respondent was entitled for concessional rate of duty or not. It paid the duty at normal rate and fought for refund of the extra duty paid on the ground that only concessional rate of duty at 5% could have been charged. Respondent succeeded in its attempt before the judicial fora. In view thereof, question of refund of duty paid which was in the tune of Rs. 27,66,970/-, arose for consideration. The Revenue/appellant herein, refused to release this refund and rejected the application of the respondent in this behalf on the ground that the respondent had passed on the burden and therefore refunding the extra duty paid would result in unjust enrichment to the respondent. Against that order the respondent filed the appeal before the Commissioner of Central Excise (Appeal) Chennai, who also dismissed the said appeal vide order dated 21.9.2000. Challenging that order the respondent filed further appeal before the CESTAT. In this ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges which have been paid or have been adjusted in an account current maintained with the Collector under Rule 9, and of which repayment wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or misconstruction, shall be refunded unless the claimant makes an application for such refund under his signature and lodges it with the proper officer within three months from the date of such payment or adjustment, as the case may be." 18. Rule 11 was amended with effect from 6-8- 1977 and it remained in force till the coming into force of Section 11-B. Rule 11, as it obtained during the said period, read as follows: 11. Claim for refund of duty.-- (1) Any person claiming refund of any duty paid by him may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty. Provided that the limitation of six months shall not apply where any duty has been paid under protest. Explanation.-- Where any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall be computed from the date on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to-- (a) rebate of duty of excise on excisable goods exported out of India or on excisable material used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Commissioner of Central excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple of unjust enrichment shall be applicable in the case of captive consumption as well. According to the Court the principle of unjust enrichment would be applicable in both the circumstances. This case, therefore, makes it clear that the principle of unjust enrichment is applicable even when the goods are used for captive consumption. No doubt, in the said case the goods with which the Court was concerned was raw material, imported and consumed in the manufacture of the final product. The question is as to whether this principle would be extended to capital goods also, as it was in respect of raw material. This was left open in Mafatlal Industries case. As it falls for determination in the present case, we are addressing this issue. To answer this issue, we may drawn some sustenance from the judgment of this Court in the case of Indian Farmers Fertiliser Coop. Ltd. vs. C.C.E, Ahmedabad (1996 (86) ELT 177 (S.C.). Though that case is concerned with the exemption of Raw Naptha was used to produce ammonia which is used in effluent treatment plant. Notification No. 187/61-CE provided for exemption to such Raw Naptha as is used in the manufacture of ammonia provided such ammonia is u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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