TMI Blog2015 (11) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of unjust enrichment is applicable in the case pertaining to the period before the enactment of provision of unjust enrichment and that the refund is sanctioned subsequent to the enactment. Even though contention of the Ld. Asstt. Commissioner is taken as correct but this contention could have been raised not by issuing fresh show cause notice but by way of appeal against the earlier order (dated 24/4/1999) of the Commissioner (Appeals). Since the department failed to file an appeal against the said order, the order dated 24/4/1999 passed by the Commissioner (Appeals) has attained finality and all the proceedings subsequent to that by way of another show cause and adjudication and appeal become non-est and therefore the order dated 24/4/1999 shall prevail by which it was held that unjust enrichment is not applicable. In view of this position the refund claim rejected on the ground of unjust enrichment in the impugned order is not sustainable. - impugned order rejecting claim on the ground of unjust enrichment as well as limitation is not sustainable, hence, the same is set aside. - Decided in favour of assessee. - Appeal No. E/2737/05 - Final Order No. A/2560/2015-WZ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Honble Supreme Court vide order dated 6/11/1996 upheld the Tribunals order. The claim was pending and appellant filed a writ petition in High Court. The Bombay High Court vide its order dated 1/7/2003 directed department to decide the refund application filed by the appellant vide their application dated 3/5/1990 in accordance with law as expeditiously as possible at any date within six months from the date of receipt of the Writ order from the Court. Accordingly, the adjudicating authority rejected the refund claim on the ground that the appellant has passed on the incidence of duty to their customers. Being aggrieved by the said adjudication order, the appellant filed appeal before the Commissioner (Appeals), who rejected the appeal of the appellant on the ground of unjust enrichment vide the impugned order dated 16/5/2005, therefore the present appeal. 3. Shri. Vishal Agarwal, Ld. Counsel for the appellant submits that in case of first show cause notice dated 17/7/1989 revenue sought to reject the refund claim on the ground of unjust enrichment which was travelled up to Commissioner (Appeals) and the Commissioner (Appeals) vide order dated 13/3/1990 allowed the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said classification list that duty will be paid in protest. The refund is for the period 1982-88 therefore the protest expressed by the appellant in the classification list filed in 1982 was operative through out the period till 1988 therefore payment of duty made during 1982-88 is payment of duty under protest. In these facts, there is no dispute that duty was paid under protest and hence limitation is not applicable. In support of his claim, Ld. Counsel relied upon judgment of Collector of Central Excise, Bombay-III V/s Pidilite Industries Ltd. [1998(101) ELT 693 (Tri.)]. 4. On the other hand, Shri. V.K. Shastri, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that as regard the unjust enrichment as and when refund is processed for sanction, aspect of unjust enrichment has to be verified. Since in the present case, refund was not sanctioned so far therefore at the time of sanctioning the refund claim, unjust enrichment was correctly gone into by the sanctioning authority and found that appellant could not prove that incidence of refund amount has not been passed on to any other person. Ld. Lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rejected on the ground of unjust enrichment by the original authority vide order dated 13/9/1989 has been allowed by setting aside the Order-in-Original. It is undisputed that after this order in appeal dated 24/4/1990, the Revenue has not filed any appeal against the said order dated 24/4/1990 therefore same attained finality. Thereafter by way of another show cause notice the Asstt. Commissioner again raised point of unjust enrichment and the same was adjudicated against assessee and Commissioner (Appeals) upheld the same vide impugned order. I am very clear in my mind that such proceedings is absolutely non est and infructuous for the reason that once the issue has been settled by the Commissioner (Appeals) without challenging the same, Rvenue could not again raised the same issue by way of another show cause notice and deciding the same contrarily by taking U-turn. The Asstt. Commissioner and Ld. Commissioner (Appeals) in the subsequent proceedings held that the provision of unjust enrichment is applicable in the case pertaining to the period before the enactment of provision of unjust enrichment and that the refund is sanctioned subsequent to the enactment. Even though conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
