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TMI Blog2024 (6) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and cleared the same on payment of duty. The appellant is located in the State of Assam and had filed two refund claims under Section 11B of the Central Excise Act, 1944 wherein they claimed that they had received Superior Kerosene Oil (SKO) from Haldia, Barauni, Gujarat and Panipat Refineries during the impugned period and the entire quantity of SKO was cleared from those refineries at 'nil' rate of duty in terms of Notification No. 4/2006-C.E. dated 01.03.2006, for ultimate sale through Public Distribution System (PDS) 2.1. The appellant claimed that due to some urgent market requirements, they had to sell some quantity of SKO so received to non-PDS customers. Since there is no exemption granted to SKO cleared to non-PDS customers, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim as time-barred. 4.2. In Excise Appeal No. 75643 of 2015, it has been held in the impugned order that the appellant has failed to pass the bar of unjust enrichment and the refund claims were filed beyond the time-limit prescribed under Section 11B of the Central Excise Act, 1944. 5. Aggrieved from the said orders, the appellant is before us. 6. The Ld. Counsel appearing on behalf of the appellant submits that as the duty has been paid by the manufacturers of the goods in question after clearance of the said goods by the appellant, at the rate of 14%, and the appellant had paid duty at the time of clearance at the rate of 7%, in these circumstances, the goods in question have suffered 21% rate of duty instead of 14%. Therefore, he s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant are barred by limitation or not. 10. On the issue of unjust enrichment, we find that the SKO was to be distributed to PDS customers, on which no duty is payable by the appellant. The appellant cleared the SKO to non-PDS customers, on which duty is payable by the manufacturer of the said goods, but the appellant has paid duty at the rate of 7% under Notification No. 29/2002-C.E. dated 13.05.2002 although the appellant was not liable to pay duty. Thus, though the appellant was not liable to pay duty, the goods were cleared on payment of duty. Later on, the manufacturers of the said goods have paid duty at the full rate i.e., 14%. In these circumstances, the goods in question have suffered 14% rate of duty, which has been borne by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than 7% of duty although total duty paid was 21% by the IOC as a whole. As such the question of unjust enrichment is not applicable here." 11. In view of the above, we hold that, in the facts and circumstances of the case, the appellant has passed the bar of unjust enrichment. 12. With regard to the issue as to whether the refund claims filed by the appellant are barred by limitation or not, we observe that the said issue has been examined by this Tribunal in the case of M/s. Bansal Biscuits Private Limited v. Commissioner of Central Excise & Service Tax, Patna [Final Order No. 77489 of 2023 dated 17.11.2023 in Service Tax Appeal No. 75363 of 2016 - CESTAT, Kolkata] wherein the Tribunal, relying upon the Ld. Third Member reference i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case. Therefore, it is held that in the present case the provisions of Section 11B (time limit) would not be applicable." 15. Coming to the point raised by the Learned AR with regard to non-addressing of the unjust enrichment by the lower authorities, as observed in the previous paragraphs, the Adjudicating Authority has failed to address this issue. No further Appeal was filed by the Department before the Commissioner (Appeals). The Commissioner (Appeals) has upheld the order passed by the Adjudicating Authority. The Revenue has not filed any Appeal by their grievance, if any about non-addressing of the unjust enrichment issue. This being so, when the Department itself has not addressed this issue at lower stages nor agitated be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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