2007 (10) TMI 20 - AT - Central Excise

Refund Appellant claim for refund of duty paid under protest denied by the Commissioner (A) on the ground of the time bar and unjust enrichment Appellant provide sufficient evidence in support of his contention Refund claim allowed by the tribunal

Summary

Issues:
1. Refund claim barred by limitation.
2. Unjust enrichment angle in refund claim.

Refund Claim Barred by Limitation:
The appellant, engaged in the manufacture of Ammonia Urea, sought permission for obtaining Naphtha at a concessional rate of duty. The Assistant Commissioner rejected their request for issuance of a CT-2 certificate, leading to the appellant obtaining Naphtha by paying full duty during the appeal process. The Commissioner (Appeals) accepted the appellant's stand on duty paying documents but rejected the refund claim citing time bar and unjust enrichment. The appellate authority held the refund claim barred by limitation, relying on the National Winders case. However, the appellant argued that their appeal against the denial of CT-2 certificate constituted a protest, citing the India Cements Ltd. case. The Tribunal found that the filing of an appeal against the assessment order is a form of protest, leading to the conclusion that the refund claim was not time-barred.

Unjust Enrichment Angle in Refund Claim:
Regarding unjust enrichment, the appellant provided a certificate from their Chartered Accountant showing that the duty element was not recovered from customers. They also presented evidence that the price of urea was fixed excluding the excise duty paid on Naphtha. The Commissioner (Appeals) rejected the claim of unjust enrichment based on the assumption that the price of goods remained the same despite different duty rates. The appellant argued that the Commissioner did not consider the certificate and cited various judgments to support their position. The Tribunal set aside the order and remanded the matter to examine the unjust enrichment angle in light of the cited judgments and the evidence provided by the FICC's director.

In conclusion, the Tribunal ruled in favor of the appellant, holding that the refund claim was not time-barred and that the unjust enrichment angle needed further examination based on the evidence presented.