2009 (1) TMI 664 - AT - Central Excise

Refund - Limitation - Protest payment - Held that - the appellants have succeeded in satisfying us that the composite price inclusive of all the duties shows that price includes the duty payable - the claim of refund is not barred by limitation - refund allowed.

Summary

Issues:
1. Rejection of claim for refund of duty on Ground Power Units based on classification under CET sub-heading 8803.00.
2. Time-bar for refund, payment of duty under protest, and unjust enrichment considerations.
3. Classification issue under CET sub-heading 8502.00.
4. Interpretation of duty payment under protest.
5. Unjust enrichment and passing on the duty incidence to buyers.

Analysis:
1. The claim for refund of duty amounting to Rs. 58,72,735.28 was rejected by the authorities citing time-bar, failure to pay duty under protest, and concerns regarding unjust enrichment. The Tribunal noted that the Revenue did not accept the classification under CET sub-heading 8803.00, instead issuing a show-cause notice for classification under CET sub-heading 8502.00. However, the Tribunal's order set aside the Commissioner's decision, considering the duty payment until the Tribunal's order as payment under protest, as per established precedents. The Tribunal accepted the plea that the refund claim was not time-barred.

2. Regarding the rejection of refund based on unjust enrichment, the lower authorities emphasized the separate display of duty element in invoices. However, the appellants successfully argued that the composite price already included the duty payable, supported by customer letters confirming non-payment of excise duty. Citing relevant case laws and judgments, the Tribunal agreed that the duty incidence was not passed on to buyers, thus ruling that the claim was not affected by unjust enrichment concerns.

3. Consequently, the Tribunal set aside the impugned order and allowed the appeal, granting consequential relief to the appellants in accordance with the law. The decision was made after thorough consideration of the classification issue, duty payment under protest, and unjust enrichment aspects, ensuring a fair and just outcome for the appellants.