2008 (2) TMI 334 - AT - Central Excise

Payment of duty during the course of litigation between assessee & department - Such payments must be deemed to be made under protest - hence time-bar provisions of Sec. 11B would not be applicable to refund claim during the relevant period assessee was not entitled to discount on price of goods, so part of refund is denied - claim for the remaining amount is liable to be refunded in cash inasmuch as the Revenue has no case that this claim is hit by the bar of unjust enrichment

Summary

Issues involved:
1. Refund claim of duty paid for the period Oct.'74 to Sept.'82 transferred to Consumer Welfare Fund on grounds of unjust enrichment.
2. Rejection of refund claim for duty paid for the period April, 1966 to September, 1974 as time-barred.
3. Dispute regarding calculation of duty payable on goods under Notification No. 161/66-C.E.
4. Payment of duty of Rs. 13,052.72 under protest during litigation between assessee and department.
5. Admissibility of refund claim for duty paid prior to 8-10-1966.
6. Claim of refund of duty of Rs. 47,056/- and the plea of unjust enrichment.

Analysis:

1. The appellant claimed a refund of duty paid for the period Oct.'74 to Sept.'82, which was transferred to the Consumer Welfare Fund due to unjust enrichment. Another refund claim for duty paid from April, 1966 to September, 1974 was rejected as time-barred.

2. The dispute arose from the method of calculating duty payable on goods under Notification No. 161/66-C.E. The appellant deducted duty from the price first and then deducted the discount, while the department argued for the reverse. The High Court's judgement favored the appellant's method, but the duty had already been paid as per the department's formula.

3. The payment of duty of Rs. 13,052.72 was made under protest during litigation, exempting it from the time-bar provisions. A small part of this amount related to a period where the appellant was not entitled to discount, thus not admissible for refund. The remaining amount was deemed refundable as it was not time-barred and not hit by unjust enrichment.

4. The refund claim of duty of Rs. 47,056/- was contested on the grounds of unjust enrichment. The High Court's directions and subsequent dismissal of the department's appeal supported the appellant's claim, ruling out unjust enrichment. The plea against this refund claim was not available to the Revenue.

This detailed analysis covers the various issues involved in the judgment, addressing the refund claims, calculation disputes, time-bar provisions, and unjust enrichment considerations.