TMI Blog2016 (7) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... iod from the date of Hon’ble Supreme Court judgment dated 23.11.2004. Thus, refund application is not barred by limitation of time. Unjust enrichment - refund claim - Held that: - Since the duty amount had not been charged or claimed in the invoices, it cannot be said that the incidence has been passed on to the buyer of the goods - in the balance sheet as on 31.03.1992, the appellant had shown the disputed duty under the head “current assets, loans and advance”, showing the narration as Central Excise duty paid under protest. The accounting entry made in the balance sheet proves beyond any shadow of doubt that the incidence of disputed duty had been borne by the assessee and not passed on to any other person. Hence, the doctrine of unju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before the Jurisdictional Central Excise authorities on 21.02.2005, claiming refund of ₹ 1,00,86,798/-. The said refund application was returned by the Department to the assessee on 06.04.2005, stating that the application suffers from some discrepancies. Thereafter, the assessee had re-submitted the refund application, which was adjudicated on 23.05.2006 in rejecting the claim of the assessee on the grounds of limitation as well as on unjust enrichment. The assessee had preferred appeal before the Commissioner (Appeals). However, the amount of ₹ 95,51,165/- was forgone by the assessee in the appeal before the Commissioner (Appeals). Thus, the net effect of the refund claim was ₹ 5,35,633/-. The Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee. 4. I have heard the Ld. Counsel for both the sides and perused the records. 5. It is an admitted fact that the refund application initially filed on 21.02.2005 was returned by the Department under the cover of Letter dated 06.04.2005, showing certain discrepancies in the claim application. The said application though was re-submitted on 23.05.2006, such date will not be taken as the relevant date for the purpose of consideration of the limitation period provided under section 11B of the Act, in view of the fact that Section 11B, nowhere mandates that the refund claim has to be returned by the Central Excise Officers. Sub-section (2) of Section 11B provides that on receipt of any application, the Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assistant Commissioner and it shall be duly considered and an appropriate decision be taken thereon in accordance with law after giving adequate opportunity to the applicant to furnish proof, if any, in support of his claim. Rule is made absolute accordingly with no order as to costs. 6. Further, this Tribunal in the case of Commissioner of Service Tax Mumbai Vs Reliance Communication Ltd.-2008 (11) STR 258 (Tri. Mum) has held that if the returned application is resubmitted later, the initial date of filing should be construed as the date of filing the refund application. In view of the above, I am of the considered opinion that there is no infirmity in the impugned order so far as allowing the appeal of assessee on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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