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2014 (5) TMI 767 - AT - Central ExciseRefund claim - Unjust enrichment - Period of limitation - amount due was not reflected in the books of account as claims receivable - Eligibility for the duty exemption - benefit of Notification NO. 67/95-CE dated 16-3-95 - Held that - it is an admitted position that the appellant HPCL did not follow the procedure for payment of duty under protest prescribed in rule 233B of the Central Excise Rules, 1944 or other provisions prescribed at the relevant time. Having failed to do that they cannot claim that merely because they had challenged the assessment order dated 30-01-2002, the payment made much earlier to the assessment order should be deemed as payment under protest . It is a well-settled statutory principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other. Period of limitation - Refund arose consequent to the decision of the Tribunal dated 15-7-2005. - Held that - The payments were made much before, that is during December 1998 to June 2001 and part of the payments were made in June and September 2002 and in July, 2003. The refund claim was filed only on 19-5-2008, that is about 3 years after the decision of the Tribunal and more than 5 years after the payment of duty. Thus the refund claim has been filed much after the stipulated period of one year under section 11B and hence they are clearly time-barred - Thus in respect of refunds which became payable, this time limit would apply. In the present case the claim was filed only on 19-5-2008 and the amended provisions would certainly apply in respect of such claims. Viewed from this angle also, the refund claim is clearly time-barred. Unjust enrichment - Held that - Refund amount due was not reflected in the books of account of HPCL as claims receivable. This implies that the duty paid was shown as current expenditure and formed part of the Profit and Loss account of the assessee. Thus, if the claimant himself has treated the refund amount due as expenditure and not as claims receivable , the claimant cannot said to have passed the test of unjust enrichment. This is the settled position in law. The appellant has also contended that the appellant s goods are sold at prices determined by the Govt. and therefore, it should be presumed that the appellant has borne the incidence - uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors . Therefore, in the present case, the appellant HPCL has failed to cross the bar of unjust enrichment also and hence they are not eligible to claim the refund - Decided against assessee.
Issues Involved:
1. Time-bar of the refund claim 2. Applicability of the principle of unjust enrichment Detailed Analysis: 1. Time-bar of the Refund Claim Appellant's Argument: - HPCL argued that the payment of duty should be considered as "under protest" since the matter was pending before the adjudicating and appellate authorities. They relied on the Supreme Court's decision in the Mafatlal Industries case, which states that duty paid under protest does not attract the time-bar limitation. Tribunal's Analysis: - The Tribunal referred to Rule 233B, which mandates a specific procedure for paying duty under protest, including delivering a letter stating the grounds for protest to the proper officer. HPCL did not follow this procedure, nor was the duty paid under any court or appellate authority's order. - The Tribunal emphasized that without following the statutory procedure, the payment cannot be deemed "under protest." The Tribunal also cited the J.K. Cotton Spinning and Weaving Mills Co. Ltd. case, reinforcing that specific statutory provisions prevail over general ones. - The Tribunal concluded that HPCL's refund claim, filed on 19-5-2008, was time-barred as it was filed almost three years after the Tribunal's favorable decision on 15-7-2005. The relevant date for computing the time limit should be the Tribunal's decision date, not the High Court's dismissal of the Revenue's appeal. 2. Applicability of the Principle of Unjust Enrichment Appellant's Argument: - HPCL contended that the principle of unjust enrichment should not apply as the goods were sold at government-fixed prices. They cited various Tribunal decisions to support their argument. Tribunal's Analysis: - The Tribunal referred to the Supreme Court's decision in the Mafatlal Industries case, which held that all refund claims under the Central Excise Act are subject to the principle of unjust enrichment, including those arising from appellate or court orders. - The Tribunal noted that HPCL did not show the refund amount as receivables in their books of account, implying that the duty paid was treated as an expenditure. This treatment suggests that the incidence of duty was passed on to the consumers, failing the test of unjust enrichment. - The Tribunal also referenced the Supreme Court's decision in Allied Photographic India Ltd., which stated that uniformity in price before and after assessment does not necessarily mean the incidence of duty was not passed on. Conclusion: - The Tribunal rejected HPCL's appeal, holding that the refund claim was time-barred and that HPCL failed to prove that the incidence of duty was not passed on, thereby not overcoming the bar of unjust enrichment. - The Revenue's appeal was allowed, and the refund claim was denied on both grounds.
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