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TMI Blog2009 (1) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... of the duty paid on the inputs used in the manufacture of the goods exported in discharge of the export obligation under the value based Advance Licence issued to them. 4. It was the contention of the appellants that they did not import any duty free goods under the value based licence issued to them and they have not taken any credit of the duty paid on the inputs procured indigenously used in the manufacture of exported goods. 5. Notwithstanding the aforesaid contention, the appellants were made to reverse the credit to the extent of Rs. 7,37,586.00. They reversed the credit vide (i) debit entry no. 44 dated 4th September, 1995 for Rs. 3,00,000.00 in RG 23-C Part II; and (ii) Rs. 4,37,586.00 vide debit entry no. 491 dated 25th Septem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings to the Adjudicating Authority with a direction that he should verify whether credit was indeed taken or not, since the appellants are in possession of the documents showing that no credit was taken at all and once it is established that no credit was taken and inputs were indigenously procured and no inputs were imported at all and further no refund has been claimed in respect of the duty paid on the inputs or drawback, then the appellants cannot be required to reverse the Modvat credit and the credit already reversed should be refunded to the appellants by way of allowing credit in RG-23-C Part II. 12. Vide second notice to show cause dated 15th February, 1999, the Assistant Commissioner of Central Excise, called upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained the rejection of the refund claim only on the ground of time-bar. 17. Being aggrieved by the said Order-in-Appeal, the above appeal is filed by the appellants. 18. I have examined the position. I find that the only ground, on which the refund claim is rejected by the Commissioner of Central Excise (Appeals), is that the claim is filed beyond a period of six months as contemplated under Section 11B of the Act. 19. In this regard, it is to be noted that the refund claim was filed by the appellant vide their letter dated 4th December, 1995 addressed to the Additional Commissioner of Central Excise, which was acknowledged on 4th December, 1995 itself. Thus, the refund claim was filed within three months from the reversal of the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the only mode of protest under Rule 233B, in these circumstances, was to record the protest in the Statutory Registers (RG 23C and PLA) at the time of reversal of credit. 23. Both the Adjudicating Authority and the Commissioner (Appeals) merely proceeded on the basis that the letter intimating the Adjudicating Authority of reversal under protest was received by the Department subsequent to the date of reversal of the credit and totally ignored the protest made at the time of reversal of credit. 24. In any event, in the case of ITC Limited (supra), the Hon ble Chennai High Court treated the letter given three days after the date of payment as sufficient compliance under Rule 233B. In the case of ITC Limited, the assessee expunged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been lodged and moreover, the refund claim has been filed in time. 29. It was submitted by the learned Departmental Representative that in the absence of any evidence to show that the appellants had not passed on the amount, of which the refund was claimed, to any other person, no refund can be granted. 30. In this regard, the appellants have contended that Clause (c) to the first proviso to Section 11B of the Central Excise Act, 1944 provides that the doctrine of unjust enrichment is not applicable to the refund of credit of the duty paid on the excisable goods used as input in accordance with the rules made or any notification issued, under the Central Excise Act, 1944. Since they have claimed the refund of the amount of credit reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act, 1944 is not attracted in this case and the refund claim has to undergo the test of unjust enrichment. Even in the ITC Limited case (Supra), in identical circumstances, the CEGAT, as it was known then, by its order directed that the refund be given to the assessee, unless the duty has been passed on to the consumer. This was noted by the Madras High Court as is evident from Para 3 of its judgment. 33. I, therefore, remand the case to the adjudicating authority for this limited purpose, who will examine the aspect of unjust enrichment and pass appropriate orders in accordance with law in this regard after hearing the appellants. 34. The impugned order passed by the Commissioner (Appeals) is set aside and the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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