2017 (12) TMI 315 - AT - Central Excise

Refund claim - unjust enrichement - applicability of Section 11B and Section 12B of CEA 1944 - Held that - there was no order on record establishing provisional assessment of the goods and order finalizing the provisional assessments - the contention of the appellant that since the duty was paid under protest and Rule 233B of the said Rules 1944 were followed and therefore the provisions related to unjust enrichment are not applicable in the present case is not tenable in law for the reason that Rule 233B of said Rules has no bearing on limitation for calculation of period for eligibility of limitation for refund u/s 11B of CEA 1944 - appeal dismissed - decided against appellant.

Summary

Issues:
1. Admissibility of refund under unjust enrichment provisions.
2. Applicability of Rule 9B of Central Excise rules.
3. Impact of payment under protest and Rule 233B of Central Excise Rules on unjust enrichment provisions.

Analysis:
1. The appeal arose from an Order-in-Appeal passed by the Commissioner of Central Excise & Customs, Allahabad. The appellant, a chemical manufacturer, paid Central Excise duty for a specific period on Lindane (T) falling under Chapter sub-Heading No.3808.10. The duty was paid at 18% ad valorem based on a circular dated 28.10.1997, which was later invalidated by the High Court. The appellant sought a refund of Rs. 67,91,380, claiming that the duty burden was not passed on to customers. However, the Original Authority and Commissioner (Appeals) found that the duty element was indeed passed on, rendering the refund inadmissible due to unjust enrichment provisions under Sections 11B and 12B of the Central Excise Act, 1944.

2. The appellant contended that Rule 9B of the Central Excise rules applied to the case, thereby arguing against the applicability of Sections 11B and 12B. Additionally, it was argued that payment under protest following Rule 233B of the Central Excise Rules exempted the case from unjust enrichment provisions. However, upon review, the Tribunal found no evidence of provisional assessment orders or finalization, undermining the appellant's arguments. The Tribunal held that Rule 233B did not impact the eligibility period for refund under Section 11B, dismissing the appeal based on these findings.

3. The Tribunal's decision was based on a lack of supporting documentation for provisional assessments and the absence of a legal basis for the appellant's contentions regarding Rule 9B and Rule 233B. As a result, the Tribunal upheld the lower authorities' rulings, emphasizing the importance of complying with statutory provisions and providing sufficient evidence to support refund claims. Ultimately, the appeal was dismissed, highlighting the necessity for proper documentation and adherence to legal requirements in refund cases to avoid issues related to unjust enrichment.