TMI Blog2004 (9) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellants are engaged in the manufacture of plastic goods falling under Chapter 39 of the CETA. They had been paying normal duty @ 16% Adv., on the said goods up to 3-3-1999 and also availing Modvat credit on the inputs used in the manufacture of the said goods. But w.e.f. 4-3-1999, they opted for payment of concessional duty @ 8% on the said goods under Notification No. 5/99-C.E., dated 28-2-99. They accordingly, reversed the credit attributable to the closing stock of inputs lying in balance with them as on 3-3-1999. The amount reversible/payable was worked out by them to be Rs. 25,45,058/-. They accordingly reversed credit of Rs. 16,35,777/- and paid the balance of Rs. 9,09,281/- from the PLA. 3. Similarly, they reversed credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96,491/- according to the Counsel, could not be treated to be pre-matured under the law for the simple reason that some adjudication proceedings were pending. 5. On the other hand, the ld. SDR has reiterated the correctness of the impugned order. 6. We have heard both the sides. 7. From the record, it is evident that the appellants were earlier paying duty at the normal rate of 16% Adv., on their goods and availing the Modvat credit on the duty paid inputs utilised in the manufacture of the goods. They however, themselves voluntarily opted to pay concessional duty @ 8% on their goods under Notification No. 5/99 w.e.f. 4-3-99. The benefit under this Notification could be availed by them only after satisfying the Condition No. 10 append ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edits and payment of duty from PLA, was wrongly made by them, on the ground that the Condition No. 10 of the above said notification did not debar the taking of credit on the inputs used in the manufacture of the goods specified in Col. 3 of the Table. 9. The contention of the ld. Counsel that duty was paid under protest and bar of limitation did not apply, cannot be accepted. There is nothing on record to suggest if any demand of duty was raised from the appellants or any order in writing was sent to them by the competent authority for reversal/debit of the credit and payment of duty from PLA for availing the benefit of the above said notification. They themselves opted to pay the duty at a concessional rate under the above said notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2002 (148) E.L.T. 434 (Tribunal-Delhi)] that limitation did not apply for the refund of duty paid under protest, is not attracted to the case of the appellants as in those cases, the duty was demanded from the assessees and they paid it under protest and their protest claim, made through representation letter accompanying the payment of duty, was not disposed of. But in the present case, the appellants themselves voluntarily debited reversed the credit and even paid part of the duty from the PLA for availing the benefit of the above referred notification. They wanted this payment to be treated under protest, on the ground that they were not sure about the true scope/implications of the above referred notification. They were never forced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bit taking the credit on the inputs utilised in the manufacture of the goods classified in Column (3) of the Table, thereunder, but there is nothing on record to suggest if the reversal of the credit or the payment of duty was made by the appellants under the pressure, threat or coercion exercised on them, by the Department. They of their own made reversal of the credit in the statutory record of part of the amount and some amount even was paid by them from their PLA, for availing the benefit of the notification in question, referred above. Therefore, the payment of duty by them could not be treated under protest. They were required to file the refund claim within the limitation prescribed under Section 11B and having failed to do so, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y incurred by them on the inputs utilised for the manufacture of final products, was not passed on by them to the ultimate consumers. Having failed to do so, their refund claim has been rightly rejected by applying the principle of unjust enrichment. 12. The claim for refund of Rs. 89,726/- and Rs. 2,96,491/- had been rejected, being pre-mature, as these were subject-matter of adjudication, which was still pending at the time of passing of the order. The refund of these amounts could be claimed by the appellants only after the adjudication was completed and not before that. Therefore, we do not find any illegality in the impugned order in regard of these refund claims. 13. In the light of discussion made above, the impugned orders in al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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