TMI Blog2007 (1) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... where original payments of duty were made under protest. Accordingly, the orders passed by the Central Excise Authorities were set aside. 2.Background facts in a nutshell are as follows :- Respondent No. 1 was formerly known as M/s. Birla Jute Industries Ltd. - unit Chittor Cement Works. It was engaged in the manufacture of Cement which is classifiable under Chapter 25 of the Schedule to the Central Excise Tariff Act, 1985 (in short 'Tariff Act'). It claimed the benefit of rebate of Central Excise duty under Notification No. 36/87-C.E., dated 1-3-1987 which was denied by the Department. Thereafter, respondent No. 1 paid duty at the applicable rates under protest during the period between March 1987 to March 1990. Initially, the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al before the Commissioner (Appeals), which was dismissed placing reliance on the decision of this Court in Mafatlal Industries Ltd. v. UOI [1997 (89) E.L.T. 247 (S.C.)]. It was held that principle of unjust enrichment would apply to the present case, since respondent No. 1 had passed on the incidence of duty to its customers. Appeals were filed before the CEGAT by respondent No. 1 which relying on the decision of this Court in Sinkhai Synthetics Chemicals (P) Ltd. v. Collector of Central Excise, Aurangabad [2002 (9) SCC 416] held that the principle of unjust enrichment was not applicable as amount had been paid under protest. Accordingly, the appeals were allowed. In these appeals the primary stand of the appellant is that the decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34] held as follows :- "(1)Section 11B was inserted in the Act w.e.f. 17-11-1980. Under Explanation (B)(e) to Section 11B(l), where assessment was made provisionally the relevant date for commencement of limitation of six months was the date of adjustment of duty as final assessment. Entitlement to refund would thus be known only when duty was finally adjusted. Explanation (B)(e) referred to limitation in cases covered by Rule 9B which dealt with duty paid under provisional assessment. The said rule started with a non obstante clause. Rule 9B was a complete code by itself. On compliance with the conditions therein, the proper officer was duty-bound to refund the duty without requiring the assessee to make a separate refund application. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases of refund of duty paid under provisional assessment, the substantive provision for provisional assessment of duty was Rule 9B. Therefore, even with the deletion of old clause (e), Rule 9B continued during the relevant period. Therefore, Section 11B (as amended) applied to claiming of refunds where the burden was on the applicant to apply within time and prove that the incidence of duty had not been passed on whereas Rule 9B covered cases of ordering of refund/making of refund, where on satisfaction of the conditions, the officer concerned was duty-bound to make the order of refund and in which case question of limitation did not arise and, therefore, there was no requirement on the part of the assessee to apply under Section 11B. Last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was not entitled to refund. The basis on which a manufacturer claims refund is different from the basis on which a buyer claims refund. The cost of purchase to the buyer consists of purchase price including taxes and duties payable on the date of purchase (other than the refund which is subsequently recoverable by the buyer from the Department). Consequently, it is not open to the buyer to include the refund amount in the cost of purchase on the date when he buys the goods as the right to refund accrues to him at a date after completion of the purchase depending upon his success in the assessment. Lastly, as already stated, Section 11B dealt with the claim for refund of duty. It did not deal with making of refund. Therefore, Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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