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TMI Blog1998 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... and 442/91-D, dated 31-10-1991, held them to be eligible for the benefit of the aforesaid Notification. Since, at that stage the said Notification had been rescinded, they claimed refund of amount paid by them as duty through PLA with the alternative request that the amount may be credited to their RG 23A Part II account. The refund claim was disposed of by the Assistant Commissioner vide his order dated 21-11-1995. He rejected the refund claim on three counts :- (1) Respondent had not filed the necessary documents. (2) Notification No. 201/79 did not permit refund in cash. (3) Amended provisions of Section 11B(2) relating to unjust enrichment did not permit cash refund to be paid to them. Aggrieved with this order respondent approached the Collector (Appeals) who allowed their appeal on all the three counts. It is this order which has been challenged in the present appeal by the department. 2. Arguing the appeal, Shri Y.R. Kilania, learned DR submitted that the order-in-original of the Assistant Collector was correct in law and the Collector (Appeals) erred in setting aside that order. The ground taken in that order by the Assistant Collector on the aspect of unjust enr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that they had failed to submit the documents. This finding has been rightly overruled by the Commissioner (Appeals). As regards the next adverse finding by the Assistant Commissioner that Notification No. 201/79 did not permit cash refund it was pointed by Shri Vaish that the Commissioner (Appeals) had rightly followed a number of Tribunal decisions cited by them holding that where the assessee was prevented from availing of the credit available under either Proforma Credit Scheme under Rule 57A or the benefit of Notification No. 201/79 by the department under a mistaken belief that such benefit was not admissible and subsequently, as a result of decision by higher authorities like Tribunal, the benefit is held to be admissible, the assessee cannot be deprived of such a benefit on the ground that when such a decision is taken in their favour the scheme of such benefit is no longer available or that the final product for clearing which such credit has been sought to be availed of has become non-dutiable. Actually at the time when refund was filed, the benefit of Modvat credit was available to them in respect of the inputs in question vis-a-vis the final product which was dutia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the claimant it is to be passed on to the consumer welfare fund in accordance with the procedure prescribed for the purpose. Since, the Commissioner (Appeals) has, however, held their claim to be admissible or all the counts agitated by the respondents, it will be necessary to consider all the issues including the aspect of unjust enrichment. 6. To begin with, the rejection of the refund claim on the ground that necessary documents had not been filed by the respondents, ignores the admitted position reflect in the order-in-original itself which has been referred to earlier. The plea in this regard raised by the respondents before the Commissioner (Appeals) was rightly accepted by that authority. It is too late in the day for the department to raise the ground that respondents had not submitted the documents. This ground is rejected as untenable. 7. Coming to the next question as to the non-admissibility of refund in cash since the relevant Notification No. 201/79 did not permit such a facility that should not pose any problem as respondent is prepared to accept as an alternative relief the crediting of the refund amount in the RG 23A Part II account. Obviously the claim has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in the Supreme Court by a Civil Appeal. That appeal has been dismissed as reported in the Courtroom Highlights in 1986 (84) E.L.T. A106. 8. The next issue to be considered is the applicability of the provisions of sub-section (2) of Section 11B of the Act. The main provision of this Section provides for any amount of duty of excise determined as refundable to the claimant to be credited to the consumer welfare fund but this provision is subject to the proviso that such amount of duty determined as admissible shall, instead of being credited to the fund, be paid to the appellants, if it is relatable, inter alia, to refund of credit of duty paid on excisable goods used as inputs in accordance with the Rules made or any Notification issued under the Act. Duty was paid as assessed. Had the necessary permission for availing the benefit of Notification No. 201/79 been granted at the appropriate time when the application was filed respondent would have availed the exemption to the extent of duty paid on the inputs. Having failed to get that permission appellant paid the entire duty through Personal Ledger Account. Once the admissibility of the exemption became settled when the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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