9911796707
TMI Blog2005 (5) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Rule 56C for the duty paid on the wooden drums, but their claim was rejected by the Department. Finally, the Tribunal allowed the benefit of these provisions vide final Order dated 30-7-1990 and set aside the order of the lower authorities. The Tribunal while disposing of the matter, directed the Department to give consequential effect to its order. 3. In pursuance of the above said order of the Tribunal, the appellants filed the claim on 3-9-1990 for the refund of the duty amount in dispute. The Asstt. Commissioner allowed the refund vide order dated 22-7-1991. That order was appealed against after review, before the Commissioner (Appeals) by the Department and the learned Commissioner (Appeals) through the impugned order has set aside the order of the Asstt. Commissioner and disallowed the refund claim on the ground that the same is barred by the principle of unjust enrichment as the appellants had passed on the incidence of duty to the ultimate buyers. 4. The learned counsel in order to assail the validity of the impugned order has raised two fold contentions : Firstly, that the doctrine of unjust enrichment is not attracted to the case of the appellants as the ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercising the power conferred on him under Section 35E of the Act, ordered for filing of appeal against that order before the Commissioner (Appeals). The appeal was accordingly filed by the Department before the Commissioner (Appeals) within the period prescribed under the law. The fact that Asstt. Commissioner in a haste for the reasons best known to him even handed over the refund amount to the appellants, but that did not debar the Commissioner from exercising his power under Section 35E and directing the filing of the appeal against that order. The payment of the refund amount to the appellants by the Asstt. Commissioner also did not had the effect of making his order unassailable and final. 7. When the appeal was filed before the Commissioner (Appeals) challenging the correctness of the order of the Asstt. Commissioner allowing the refund to the appellants, the amended provisions of Section 11B came into force incorporating the principle of unjust enrichment and as such could be made applicable legally to the case of the appellants by the Commissioner (Appeals). No illegality can be said to have been committed by him in this regard. 8. The Apex Court in the case of M/s. Maf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition regarding the principle of unjust enrichment before the amendment of Section 11B in para 88 of the above referred case of Mafatlal Industries, supra, by observing as under : 7(b) the principle of unjust enrichment is not a new principle. Section 12B does not create a new presumption unknown till then, it merely gives statutory shape to an existing situation. Even without Section 12B, the true position is the same. The obligation to prove that the duty has not been passed on to other persons was always there as a pre-condition to claim of refund. 10. Further in Para 96 of the judgment in that case, the Apex Court has ruled as under : 96. It would be evident from the above discussion that the claims for refund under the said two enactments constitute an independent regimen. Every decision favourable to an assessee/manufacturer, whether on the question of classification, valuation or any other issue, does not automatically entail refund. Section 11B of the Central Excises and Salt Act and Section 27 of the Contract Act, whether before or after 1991 amendment - as interpreted by us herein - make every refund claim subject to proof of not passing - on the burden of duty t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., supra, wherein the scope of Sections 35E and 11A had been detailed. As observed above, no show cause notice under Section 11A was required to be issued to the appellants before filing of appeal against the order of the Asstt. Commissioner before the Commissioner (Appeals). Moreover, the Circular was not in existence during the relevant period and was issued at a later point of time and as such could not be availed by the appellants in view of the Apex Court judgment in the case of Kalyani Packagings Indus. Ltd. v. UOI - 2004 (168) E.L.T. 145. 13. The law laid down in the case of Bajaj Auto Ltd. v. UOI., 2003 (151) E.L.T. 23 (Bom.), referred to by the learned counsel, is not attracted to the case of the appellants. In that case, there was final and unconditional refund to an assessee and for that reason, the Hon ble Bombay High Court on the admission of the Revenue that the principle of unjust enrichment was not applicable, disallowed the recovery of the refund amount. But such are not the facts in the present case. Similarly, the law laid down in the case of ITC Ltd. v. CCE, Patna, 2003 (155) E.L.T. 115, is also not attracted to the present case. In that case, the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
