TMI Blog2007 (10) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... a revenue appeal against the OIA No 58/06-CE dated 30th January 06 setting aside the OIO No. 14/04 dated 24-3-04 passed by the Assistant Commissioner of Central Excise ordering that the refund of Rs. 60,550/- granted to the assessee was erroneous and is liable to be recovered from them in terms of Section 11A of the CE Act along with interest from the date of sanction of such refund. The brief facts of the case are as follows 2. At the instance of the selective audit it was pointed out that there was a difference between quantity shown in their weighment register with that shown in their invoices/R.G. 1 register. It was found that excess quantity of cement 189.890 MTs was cleared during the period 9/96 to 1/97 involving duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden of duty did not arise. It was submitted by the appellants that the appellant had disputed the very assumption and when the entire amount was paid in one lump sum purportedly to be of short paid duty in respect of goods cleared and no part of the said duty was ever demanded or collected to the account of any customer, the question of passing on the burden of a part or whole of the duty to the customer did not arise. The Commissioner accepted the plea and gave the finding in para 5 6 as follows: "5. I have carefully gone through the case records, submissions of the appellants during personal hearing and contained in their appeal memorandum. I find ample force in the appellants' contentions that the department has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefits. The revenue is aggrieved with the above finding and contend that the assessee did not produce any evidence to establish that they have not passed on the incidence of duty to their customers. Therefore, the refund was erroneously granted and it was recoverable It is also contended that the judgments cited by the Commissioner was set aside by the Supreme Court and remanded to the CESTAT for de novo consideration and hence the order is not legal and proper. 4. We have heard both sides in the matter. Learned DR contended that duty paid under protest cannot be considered to be refundable and that bar of unjust enrichment being not applicable. She referred to the Apex Court judgment rendered in the case of CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras , 2001 (129) E.L.T. 44 (Mad.) on the very point. 5. We have carefully considered the submissions made by both the sides. The Apex Court in the case cited by learned DR has held that the provision of bar of unjust enrichment would also apply in cases of duty paid under protest. However this proposition does not apply to the present case as in the cited Supreme Court judgment, it was admitted position that the duty under protest and the same had been passed on to the consumers. While in the present case, the facts disclosed that the appellants paid the duty when it was pointed out to them about the excess quantity cleared during the period in question involving duty of Rs 60,550/- . After depositing the amount they challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order reported in 1999 (105) E.L.T. 52 (T) = 1998 (28) RLT 794 (CEGAT) in respect of the same refund claim, the Tribunal has held that since the duty was paid pending appeal before the Commissioner (Appeals) in terms of Section 35F of Central Excise Act 1944, time limit specified in Rule 11B will not apply. Therefore, the finding of the authorities that the refund claim is barred by limitation is not sustainable and we accordingly set aside the same. As regard unjust enrichment, the Commissioner (Appeals) has relied upon the Apex Court judgment in the case of Union, of India v. Solar Pesticides Pvt. Ltd.,- 2000 (116) E.L.T. 401 (S.C.). However the ratio of the judgment is not attracted to the facts of the present case. The Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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