TMI Blog2016 (5) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... claim is not proper. For this reason matter needs to be remanded to the original adjudicating authority to verify payment of duty. Period of limitation - Refund claim - Duty deposited as pre-deposit at the stage of appeal - Held that:- it is settled legal position that refund will arise only when issue of demand is settled. Since the demand had been confirmed by the Adjudicating authority, unless and until the said demand is set aside either by the Commissioner(Appeals) or Tribunal as the case may be, refund does not become mature. Even if, appellant files refund within the one year from the date of payment, the same is either be rejected on the ground of pre-mature or the same shall be kept pending, therefore there was no purpose of filing refund claim within the one year from the date of payment of duty. In fact duty of ₹ 49 Crores paid as pre-deposit and the same became refundable only after demand is dropped. In the present case the demand is dropped vide adjudication order dated 16/7/2007 and the refund claim was filed on 17/10/2007 i.e. well within the stipulated period from the date of Tribunal order. Therefore, the issue of time bar is in favour of the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter, claimed to have paid duty in September 1989 and March, 1991. The appellant during the pendency of the appeal before the Commissioner(Appeals) in respect of dispute of dutiability of Lean Gas claimed to have made pre-deposit of ₹ 38.99 Crore in 1989 under protest. The appellant claimed to have made additional pre-deposit of ₹ 10 Crores under protest on 29/3/1991. Meanwhile, the dispute on dutiability of Lean Gas traveled upto this Tribunal wherein this Tribunal vide Final Order dated 16/7/2007 partly allowed the appeal thereby Tribunal dropped the demand for the period from 31/3/1981 to 30/11/1984. For the balance period after December, 1984 the matter was remanded to the Adjudicating authority for the purpose of re-quantification of the demand. Aggrieved by the portion of the order by which demand was dropped for the period 31/3/1981 to 30/11/1984, Department filed appeal before the Hon ble Bombay High Court which was dismissed and the Tribunal order dated 16/7/2007 was upheld Hon ble High court s vide order dated 16/8/2008. The appellant on 18/9/2008 filed refund claim for an amount of ₹ 48,99,65,149/- with the Jurisdiction Asstt. Commissioner. The Asstt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (Tri. - Mumbai)] (c) OPEL ALLOYS PVT. LTD. Versus COMMISSIONER OF C. EX., GHAZIABAD [2010 (249) E.L.T. 408 (Tri. - Del.)] (d) MAK CONTROLS AND SYSTEMS (P) LTD. Versus COMMR. OF C. EX., COIMBATORE [2009 (245) E.L.T. 365 (Tri. - Chennai)] (e) SURBHI ENTERPRISE Versus COMMISSIONER OF C. EX., AHMEDABAD [2007 (210) E.L.T. 588 (Tri. - Ahmd.)] (f) Commr. of Cus. (Prev), Jamnagar Vs. Continental Petroluems Ltd[2009(234) ELT 333(Tri. Ahmd.] 3.1 As regard the rejection of claim on the ground that original TR 6 Challan was not submitted, he submits that the fact of appellants deposit of ₹ 49 Crores was well within the knowledge of the department and the Honble CESTAT. He submits that regarding the deposit of ₹ 49 Crores, it was declared in EA 3 forms of appeal, Honble CESTAT while disposing stay application vide stay order dated 3/5/2001 has recorded the contention of the appellant that they have deposited ₹ 49 crores. Revenue knew factual position that the appellant have deposited ₹ 49 Crores. The appellant averred on oath way back in 1992 in the verification of appeal filed before the Tribunal. He submits that there are chain of correspon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and not to any other person. He submits that in view of this fact only the C.A. certified that excise duty paid by the appellant was not passed on to any other person. He further submits that the Commissioner (Appeals) has failed to appreciate that the Lean Gas which is sold by the appellant at a price which is fixed by the Government according to Administered Price Mechanism(APM), therefore the payment of duty otherwise not influenced price fixed on APM basis, for this reason also unjust enrichment is not involved. He also submits that appellant is Government of India undertaking, hence in such case question of unjust enrichment cannot arises. He placed reliance on following judgments: (a) PLAS PACK INDUSTRIES Versus COMMISSIONER OF CUSTOMS C. EX., AHMEDABAD[2004 (167) E.L.T. 422 (Tri. - Mumbai)] (b) GUJARAT STATE FERTILIZERS CHEM. LTD. Versus COMMR. OF C. EX., VADODARA[2005 (186) E.L.T. 607 (Tri. - Mumbai)] (c) COMMISSIONER OF C. EX., MUMBAI-I Versus SHETHIA AUDIO VIDEO PVT. LTD.[ 2003 (161) E.L.T. 452 (Tri. - Mumbai)] (d) COMMISSIONER OF CUS. C. EX., MUMBAI Versus RESHAM SINGH CO. P. LTD. [2003 (156) E.L.T. 270 (Tri. - Mumbai)] (e) QUALITY OFFS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. BPL Ltd.[2010(259) ELT 526(Mad.)] (c) SRK Products Pvt Ltd Vs. CCE, Bangalore -II[2009(240) ELT 434(Tri. Bang.)] (d) M/s. Hindustan Petroleum Corporation Ltd Vs. CCE, Mum-II[2014-TIOL-658-CESTAT-MUM] (e) Sahakari Khand Udyog Mandal Ltd. Vs. CCE, Cus. [2005(181) ELT 328)] (f) National Engineering Industries Vs. CCE, Jaipur[2005(188) ELT 471(SC)] (g) National Engineering Industries Vs. commissioner[2008(227) ELT A166(SC)] (h) Mafatlal Industries Ltd Vs. Union of India[2015(89) ELT 247(SC)] 5. We have carefully considered the submissions made by both sides. 6. We find that the issue arises for our consideration are as under: (a) Whether the refund claim can be sanctioned without availability of proof of payment in the shape of Original TR 6 Challan. (b) Whether the refund is time bar. (c) Whether the refund claim is hit by provision of unjust enrichment. 6.1 We find that after the claimed deposit of duty in two installments, the appellant made various correspondence which was responded by the department, the said correspondence are reproduced below: [Images / correspondence not reproduced since not legible] From the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... til the said demand is set aside either by the Commissioner(Appeals) or Tribunal as the case may be, refund does not become mature. Even if, appellant files refund within the one year from the date of payment, the same is either be rejected on the ground of pre-mature or the same shall be kept pending, therefore there was no purpose of filing refund claim within the one year from the date of payment of duty. In fact duty of ₹ 49 Crores paid as pre-deposit and the same became refundable only after demand is dropped. In the present case the demand is dropped vide adjudication order dated 16/7/2007 and the refund claim was filed on 17/10/2007 i.e. well within the stipulated period from the date of Tribunal order. As per fact of the case, issue of time bar is in favour of the appellant in view of the judgment of Hon ble Supreme Court in case of West Coast Paper Mills Ltd(supra) therefore we hold that demand is not time bar. 6.4 As regard the unjust enrichment, it appears from the record that the duty was not paid on consignment basis in respect of clearance of Lean Gas. The duty was admittedly paid much later than the clearance of the goods i.e. after issuance of show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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