TMI Blog2017 (3) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be entitled to claim refund of duty that has not been borne by him or has been passed on to the purchaser, we do not find any error in the findings recorded by the Tribunal - appeal dismissed - decided against assessee. - Central Excise Appeal No. 66 of 2013 - - - Dated:- 3-3-2017 - Hon'ble Bharati Sapru And Hon'ble Saumitra Dayal Singh, JJ. For the Appellant : Shakeel Ahmad For the Respondent : Krishna Agarwal, C.S.C. ORDER Heard Sri Shakeel Ahmad, learned Counsel for the appellant and Sri Krishna Agarwal, learned Counsel for the department. This Central Excise Appeal has been filed by the assessee being aggrieved b y the order of the Customs Excise Service Tax Appellate Tribunal dated 26.09.2012 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed has been borne by him and had not been passed on to any other person and the refund claim made during period w.e.f. 20.09.1991 would be subject to the principle of unjust enrichment? The period of dispute is 1st of May, 1982 to 30th September, 1982. During that period by virtue of Notification No.132/82-CE dated 21.04.1982 an exemption had been granted on the duty of excise and especially duty of excise leviable on sugar in respect of sugar produced in the factory during the period commencing on 1st day of May, 1982 and ending with 30th day of September, 1982. Admittedly, the assessee manufactured and sold certain quantities of sugar during the period of dispute, which is the period covered by the aforesaid Notification. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y exemption had been granted under notification no.132/82-CE in respect of the excess production of sugar during the lean period from May, 1982 to September, 1982, the refund on account of this exemption notification would be subject to the principles of unjust enrichment. In view of this, the impugned order is not correct. The same is set aside. The Revenue's appeal is allowed. In paragraph no.4 of the affidavit dated 03.03.2017 filed by the appellant in pursuance of an earlier order, the appellant specifically admitted as under:- 4. That the factory collects the Excise duty from the purchasers of sugar and deposits the government account as in the case of sales tax. Thus, there is no dispute to the fact that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751; It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to convass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to claim any amount by way of refund as the same results in unjust enrichment which cannot be permitted. The point in dispute being squarely covered by a three-Judge Bench of this Court in Sahakari Khand Udyog's case (supra), the order under appeal is set aside. The assessee would not be entitled to the refund of the excess amount of duty paid by it, in terms of the decision of this Court in Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise Customs, (supra). The impugned order is set aside and the appeals are allowed leaving the parties to bear their own costs. In view of the above, the questions of law raised in the memo of appeal are answered in favour of the revenue and against the assessee. The appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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