2008 (6) TMI 456 - AT - Central Excise

Summary

Issues involved: Refund claim of amount paid under protest and unjust enrichment.

Refund claim of amount paid under protest:
The appellant paid an amount under protest during investigation and later contested the allegations successfully. The refund claim was rejected on grounds of not being paid under protest and lack of evidence on passing of duty incidence. The Commissioner (Appeals) also held that the provisions of Section 11B apply as the duty was debited before the order date. However, the Tribunal found that the amount was indeed paid under protest, even though not explicitly mentioned on the challan. The absence of a protest letter under Rule 233B was deemed irrelevant as the duty was paid under protest upon receiving the show cause notice. Thus, Section 11B time-bar provisions did not apply in this case.

Unjust enrichment:
Regarding unjust enrichment, the appellants provided a Chartered Accountant's certificate and an affidavit indicating they did not recover the amount from customers. The Tribunal observed that there was no evidence of passing on the duty amount, as confirmed by the lower authorities' acceptance of the certificate and affidavit. Consequently, the Tribunal concluded that the appellants had not passed on the duty incidence claimed for refund. Therefore, the impugned order was set aside, and the appeal was allowed with consequential relief.

The judgment by the Appellate Tribunal CESTAT, Mumbai dealt with a case involving a refund claim of an amount paid under protest and the issue of unjust enrichment. The Tribunal found that the appellants had indeed paid the amount under protest, despite certain procedural discrepancies, and that the provisions of Section 11B did not apply in this context. Additionally, the Tribunal accepted the evidence provided by the appellants to show that there was no unjust enrichment, leading to the setting aside of the impugned order and allowing the appeal with consequential relief.