TMI Blog2017 (10) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 the refund claim was allowed vide Order-in-Original dated 22nd September, 1992. Under such facts and circumstances, the Apex Court was pleased to uphold the disallowance of refund. The transaction being between the two units of the same company. Such facts are not obtaining in the present appeal - the finding of the learned Commissioner (Appeals), as regards unjust enrichment is cryptic and nonspeaking, without there being an enquiry made by him - Order-in-Original restored. - E/87353/13 - A/89641/17/SMB - Dated:- 22-8-2017 - Shri Anil Choudhary, Member (Judicial) Shri H.G. Dharmadhikari, Advocate For Appellant Shri M.R. Melvin, Superintendent (AR) For Respondent ORDER Per: Anil Choudhary The issue involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , subject Order-In-Appeal dated 17.10.2011 is effective and binding on me for granting consequential relief. 16 . Further, the jurisdictional Range Superintendent has confirmed that the Assessee has paid the differential duty for which subject refund claim is filed and the said payment has been made 'Under Protest'. The relevant date for filing subject Refund claim is the date of issuance of O-In-A i.e. 17.10.2011, as per provisions of Section l1B(5)(ec) of the said Act and accordingly, subject refund claim has been filed within the prescribed time of one year, i.e. on 25.07.2012. In view of above findings subject refund is required to be sanctioned. 17. However, no refund can be sanctioned without verifying the asp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for refund of ₹ 3,23,195/- as per the provisions of sub-section (d) of proviso to Section 11B(2) of Central Excise Act, 1944. 4.. Being aggrieved Revenue preferred appeal before the learned Commissioner (Appeals) who vide the impugned Order-in-Appeal was pleased to reject the refund by relying on the ruling of the Apex Court in the case of Grasim Industries Ltd. Versus CCE Commissioner of Central Excise, Bhopal - 2011 (271) ELT 164 (SC). Further, observing as follows: (i) I have gone through the case records and considered the rival contentions. The legality or correctness of the Order-in-Appeal No. US/349/M-II/2011 dated 17.10.2011 cannot be agitated in the instant appeal. An appeal against the said order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd. stated supra. Respectfully following the above judgments, the impugned order has to be set aside. 5. The learned Counsel for the appellant urges that when the amount of refund of the differential duty, initially paid under protest, admittedly have been given to the buyer of the goods (being physician samples) they have complied with the provisions of unjust enrichment. The learned Commissioner (Appeals) have erred in not considering the same by observing that although the appellants have returned the money to the customer through cheques, however, the same cannot be co-related and these cheques could be anything else and raises doubts. The said finding of the learned Commissioner (Appeals) is erroneous without any enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of unjust enrichment is not attracted as required under the provision of section 11B of the Central Excise Act, 1944. Reliance is also placed on the ruling of a Division Bench of this Tribunal in Shiva Analyticals (I) Ltd. versus CST, Bangalore - 2007 (7) STR 35 (Tri.-Bang.), wherein the issue of unjust enrichment under the facts that the appellant-assessee was paying service tax under scientific and technical consultancy. However, when later they discovered that they were not liable to pay the said tax in terms of trade notice, they filed refund claims under Section 11B of the Act. The service tax collected was returned to clients by credit notes and cheques. It was held that in service tax matters, it is very easy to identify servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Subsequently on 07/08/1991 the refund claim was allowed vide Order-in-Original dated 22nd September, 1992. Under such facts and circumstances, the Apex Court was pleased to uphold the disallowance of refund. The transaction being between the two units of the same company. Such facts are not obtaining in the present appeal, before this Tribunal. I further note that under the facts herein, the duty was demanded by the Revenue and paid by the appellant-assessee under protest and they had contested the same before the Central Excise Authority and finally succeeded before the learned Commissioner (Appeals), vide Order-in-Appeal dated 17/10/2011. Further, the appeal filed by Revenue against the said Order-in-Appeal have subsequently been withd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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