9911796707
TMI Blog1996 (12) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of actual clearance of the goods from the warehouse. On the date of clearance the rate of duty had come down and the appellant therefore became entitled to the refund of the excess duty paid by them earlier. The refund claim was filed on 1-9-1993. The learned lower authority has taken 24-2-1993 as the relevant date for reckoning the period of limitation of 6 months for filing refund claim and has held that the refund claim should have been filed by 23-8-1993. The appellants claim has also been held as not sustainable in terms of Section 11B(2) as the appellants have not produced evidence that the duty burden had not been passed on to their customers. 2. The learned Advocate for the appellants pleaded that the appellants imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also urged that the duty element in respect of the goods in question would have been subsequently included in the cost of the end products manufactured by the appellants and for that reason therefore the duty element claimed as refund would have been passed on to the customers. 4. We observe that the Hon ble Bombay High Court in the case of Solar Pesticides has clearly held that in case any goods are captively consumed by the importer the amended provisions of Section 27 in regard to unjust enrichment would not come into play. So what has to be satisfied by the appellants is that they had used the goods captively and once that is done in terms of the judgment cited supra the amended provisions of Section 27(2) regarding unjust enrichm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y came to clear the goods only on 4-3-1993, by then the rate of duty applicable to the goods had changed. The appellants in terms of Section 15(1)(b) was required to pay duty at the rate applicable as on 4-3-1993. The cause of action for refund therefore in the circumstances could only arise on that date. Any assessment done earlier to that could not be taken to be final and in these circumstances we hold that the relevant date for the purpose of reckoning the limitation would be the one when the cause of action for the refund arose. Taking 4-3-1993 as the relevant date, the appellants refund claim which was received on 2-9-1993 therefore was within time. We therefore set aside the order of the learned lower authority and remand the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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