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TMI Blog2023 (10) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... ega power project by govt. of india and supply of goods to Mega power project was exempted vide notification no. 6/2006 dated 01.03.2006 S. No. 91. Appellant supplied the goods during the period March 2010 to June 2010 on payment of excise duty erroneously. When appellant realized their mistake, they filed Refund claim for Rs. 55,02,800/- dated 28.03.2011 under Section 11B of Central Excise Act, 1944. 3. The original adjudicating authority rejected the refund claim vide Order-In-Original dated 27.06.2011 holding that there was no requirement of payment of duty in view of specific bar provided under Section 5A(1A) of Central Excise Act, 1944. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) who rejected the appeal of the appellant vide order dated 31.10.2011. Hence, the present appeal. 4. Heard both the parties and perused the record. 5. Ld. Counsel appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. 6. He further submitted that it is undisputed fact that the appellant supplied the goods to a project of BHEL, supply to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter - However, having regard to Article 265 of Constitution of India and general principles of law and equity. State not to unjustly enrich itself, hence respondents should consider matter on merits ignoring provisions of Section 27 ibid - Writ petition allowed-Article 226 of the Constitution of India. 2023 (383) E.L.T. 69 (Tri. - Kolkata) STEEL AUTHORITY OF INDIA LTD. Versus COMMISSIONER OF CGST & C. EX., BOLPUR Final Order No. 75522/KOL/2022, dated 13-9-2022 in Appeal No E/76574/2018 Refund- Unjust enrichment Excise duty paid twice by mistake on sales made to Rail Wheel Factory-Certificate of Chartered Accountant showed that incidence of duty not passed on to consumer-Factum of excess payment as well as its non-recovery reflected from original as well as supplementary invoices-Refund claim not hit by unjust enrichment-Section 118 of Central Excise Act, 1944. 2015 (319) E.LT. 537 (Tri. -Del) PARSONS NUTRIONALS PVT. LTD. Versus COMMISSIONER OF CGST & C. EX., GHAZIABAD Refund Eligibility - Duty paid at higher rate With effect from 24-2-2009 duty reduced from 10.3% to 8.24% but by mistake duty paid at higher rate till 31-3-2009 for clearance to buyer, a marketing compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A of the Central Excise Act, 1944 is issued to the assessee. He also submits that it is not a case that the self-assessment undertaken by the assessee is challenged by the revenue by way of filling an appeal. He also submits that in case the assessee finds that the self-assessment undertaken by it has led to payment of any excess duty erroneously, which infact was not payable by it, refund thereof can be claimed under Section 11B of the Act. 11. Ld. Counsel further submits that if the analogy put forth by the Revenue that refund of tax paid under self-assessment cannot be claimed unless the self-assessment is altered in appeal is accepted, it will make the provisions of Section 11A of the Central Excise Act, 1944 redundant because in each and every case of noticing short payment or non-payment of duty, revenue has been issuing notices under Section 11A of the Act and not filling any appeal against the self-assessment undertaken by the taxpayer. 12. Ld. Counsel thereafter referred to the Statutory provisions of Section 11B of the act and submitted that claim for refund of any duty can be made by making an application and the provisions of Section 11B of the Act neither lay down a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66) GSTL 99 (Gujarat High Court). 18. After considering the submission made by both the parties and perusal of the material on record we find that it is not in dispute that the appellant supplied the goods to a project of BHEL, supply of which enjoyed exemption under Notification No. 06/2006-CE dated 01.03.2006. Further, it is not in dispute that the appellant erroneously paid duty of exercise amounting to Rs. 55,02,800/- in respect of goods supplied to BHEL and did not charge the exercise duty from its customers. When the appellant realized that he has paid excess duty thereafter he filed the refund application under Section 11B of the Central Excise Act. Refund was rejected mainly on the ground that he has not challenged the self-assessment in appeal and without challenging the self-assessment refund claim is not maintainable. It is also not in dispute that the refund claim has been filed within the period of limitation as prescribed under the provision of Section 11B. 19. Further, we find that the revenue has raised the objection that in view of the judgment of the Hon'ble Apex Court in the case of Flock India Pvt. Ltd. cited (Supra) unless the self-assessment is altered by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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