TMI Blog2016 (11) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly been recorded by CCE(A) and Tribunal. Hence, the ultimate order of Tribunal is justified and warrants no interference. Both the questions are thus answered in favour of Assessee and against Revenue. - Central Excise Reference No. 9 of 2010 - - - Dated:- 27-9-2016 - Hon'ble Sudhir Agarwal And Hon'ble Dr. Kaushal Jayendra Thaker, JJ. For the Applicant : C.S.C.,B.K.Singh Raghuvanshi For the Opposite Party : Anubhav Chandra ORDER 1. Heard Shri Praveen Kumar, learned counsel for applicant Revenue and Shri Aasutosh Agrawal, learned counsel for respondent, Assessee. 2. The following questions have been referred for adjudication under section 35H(4) of Central Excise Act, 1944 (hereinafter referred to as A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cks and bags is plastic granules and falls under Chapter 39 of Central Excise Tariff. 5. Assessee filed a classification list on 31.8.1996, classifying furnished product under Chapter 54, 59 and 63, though under protest. Later, on a judgment of Tribunal in some other matters, Assessee sought revision of classification of furnished product to Chapter 39. It filed a classification list No.2/89 effective from 11.7.1989 classifying furnished products under various headings of Chapter 39. Revised classification list was not approved by Assistant Collector who ordered on 19.1.1990 to continue classification of furnished goods under various headings of Chapters 54, 59 and 63. 6. Aggrieved by order dated 19.1.1990, Assessee preferred appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, as the duty was paid on intermediate products and the question of passing on of incidence of duty to the customers does not arise; and (b) in the instance case, duty has been under protest and hence limitation of six months does not apply as per the provisions of Section 11-B of Excise Act. 8. Assistant Commissioner again passed order dated 30.6.1998 after remand, wherein he dropped objection regarding limitation but with respect to unjust enrichment , it held that Section 12B of Act 1944 talks of excise duty which includes duty paid on intermediate product also hence burden to prove that incidence of duty whereof refund is asked, was not passed on to the customer, is upon Assessee. 9. Aggrieved by this order dated 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since duty on tape was paid at specific rate and that verification of modvatable document showed the total credit available, the amount of duty paid, amount of duty to be debited against sale of fabrics and the total amount refundable and that, therefore, the Respondents were entitled to refund of ₹ 1,16,28,268/- and the Commissioner(Appeals)'s order dt.16.11.1998 does not suffer from any legal infirmity. 11. Revenue thereafter filed a reference application no.23/2001 before this Court under section 35H(1) of Act, 1944 and vide order dated 24.11.2009, this Court directed Tribunal to send statement of case referring above mentioned questions of law, arising from Tribunal's order dated 25.10.2000. 12. In the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of Assessee by CCE (A) vide order dated 31.1.1996 and that order having attained finality, it was not open to Assistant Commissioner to deny refund on the ground of unjust enrichment. 15. We therefore, answer both the aforesaid questions by holding that in order to attract plea of unjust enrichment under section 11B(1), Reference made by Tribunal to Section 11B(2) proviso (c) is not justified as the said provision is not attracted. However, refund was wrongly denied to Assessee and to that extent concurrent findings in favour of Assessee has rightly been recorded by CCE(A) and Tribunal. Hence, the ultimate order of Tribunal is justified and warrants no interference. Both the questions are thus answered in favour of Assessee and ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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