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2017 (2) TMI 714 - BOMBAY HIGH COURT

2017 (2) TMI 714 - BOMBAY HIGH COURT - TMI - Refund claim - excess duty paid - rejection on the ground of unjust enrichment - Held that:- The Tribunal concluded that the doctrine of unjust enrichment can be invoked but that aspect was not elaborated further. Midway the Tribunal holds that there is substance in the Department's objection on the point of limitation and therefore concentrated its entire attention towards that point. In dealing with that also, in subparas (ii) to (d) of para 5, the .....

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Ordinarily, however, it is a mixed question - We are unhappy at the manner in which the Tribunal has dealt with the Appeals. We do not think that we should conclude the issue on both points, namely, whether there is a period of limitation prescribed and at the relevant time which is attracted and that the doctrine of unjust enrichment can be invoked. - Appeals restored to the file of the Tribunal for a decision afresh on merits - appeal allowed - decided in favor of appellant. - CENTRAL EXC .....

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, the appellants submit that the substantial questions of law on which this Appeal is admitted would require a remand of this case back to the Tribunal. 2. The Appeal has been admitted on the following two substantial questions of law: (1) Whether the Tribunal was correct to hold in Appeal No. E/4020R/99 that, unjust enrichment is applicable, in a case where, duty paid on yarn captively used was available as credit of Modvat and hence such credit is not hit by the doctrine .....

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ment? (2) Whether the Tribunal was correct to hold in Appeal Nos. E/3142/02 & E/3143/02 that the Refund Claims are barred by limitation, in a case where, the limitation would start from the finalisation of provisional assessment, based on the Hon'ble Supreme Court judgment in SAMRAT INTERNATIONAL [1992 (58) ELT 561 (SC) and in any case limitation was not the ground before Original Authority for denial of refund? 3. Very few facts are required to be noted for appreci .....

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s were paying duty on the said yarn cleared by them for captive consumption and sale during the said period. Therefore, a Refund Application was filed on 2261996 claiming a refund in the sum of ₹ 28,80,595/and claiming to be the alleged excess duty paid. 4. After elaborating the claim for refund in two Refund Applications what the appellants point out is receipt of Show Cause Notices arising out of these refund claims. The Department was of the opinion that the claims could be r .....

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er, the Revenue was aggrieved by this direction of the First Appellate Authority and it approached the Tribunal. In the meantime, on remand, the Authority incharge of sanctioning the refund issued such directions which required the appellants to file a detailed written submissions and which came to be accordingly filed. Thereupon, further Orders-in-Original and on remand came to be made in the month of January, 2001. The refund claims were rejected on the ground that the principle of unjust enri .....

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point of limitation deserves to be upheld. Therefore, two separate Appeals were filed by the appellants. In the meanwhile, even the Department's Appeals were found to be ripe for hearing. A common Order was passed deciding the Department's Appeals as well as the appellants' Appeals. The Tribunal has concentrated itself on the plea of limitation and held that the refund claims are barred by limitation. 6. However, the appellants pointed out certain basic and fundamental er .....

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> 9. The Tribunal concluded that the doctrine of unjust enrichment can be invoked but that aspect was not elaborated further. Midway the Tribunal holds that there is substance in the Department's objection on the point of limitation and therefore concentrated its entire attention towards that point. In dealing with that also, in subparas (ii) to (d) of para 5, the Tribunal committed serious errors of law apparent on the face of the record. The Tribunal did not elaborate as to how, in t .....

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