9911796707
TMI Blog2006 (9) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... und of unjust enrichment. The Commissioner (Appeals) held that in view of the debit notes of the oil companies, deducting the amount for the bills on account of duty, there was no question of raising the issue of unjust enrichment in respect of amount of Rs. 1,06,353/-. The refund claim for Rs. 16,612.54 was, however, rejected as time barred. 2. Earlier, the Tribunal, in Appeal No. E/l765/95-A, preferred against the order of the Commissioner of Customs (Appeals), Chandigarh made on 31-8-1995, had remanded the matter by Final Order No. 329/99-A, dated 2-2-1999 in the following terms : 3. We have carefully considered the matter. We find that the Commissioner has decided the issue on merits. He has not examined whether the refund claim wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the refund of Rs. 1,06,353/- which was adjusted against the confirmed demand, held that on seeing the debit notes whereby the Oil companies had deducted the amount from the bills on account of duty, there was no question of raising the issue of unjust enrichment and partly allowed the appeal in respect of the refund claim of Rs. 1,06,353/-. 5. The learned authorised representative for the appellant-revenue has argued that the Commissioner (Appeals) has not taken note of the settled legal position that even when duty has been passed on to the customers at the time of clearances, the assessee can still claim refund by issuing the credit notes. Reliance was placed on the decision of the Tribunal in Sangam Processors v. CCE reported in 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued for rectifying the mistake as they could not have charged such excess duty. The learned Counsel also relied upon the decision in Universal Cylinders Ltd. v. CCE, Jaipur-I reported in 2004 (178) E.L.T. 898 (Tri.-Del.), in which the Tribunal observed in para 5 of the judgment, that the undisputed fact was that the contract entered into between the assessee and the customers contained the price variation clause and held that as the customers has not paid the entire payment on price revised downwards and credit notes were issued by the assessee to their customers, the Tribunal did not find any valid reason to interfere with the order of the Commissioner (Appeals) sanctioning the refund. 7. It is unfortunate that even after two remands, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Processors (supra), was to be read in the context of sub-section (2) of Section 11B. Therefore, since the duty was paid by the customers to the oil companies at the time of clearance, the assessee will not be entitled to claim refund by virtue of subsequent debit notes by the oil company. Since the debit notes were subsequently issued after the duty was passed on at the time of clearances, following the ratio of the Larger Bench decision in Grasim Industries (supra), affirming the ratio of the decision in Sangam Processors even in the context of sub-section (2) of Section 11B, it is clear that the assessee was not entitled to get the amount of Rs. 1,06,353/- by way of refund. The impugned order, to the extent it is challenged by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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