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TMI Blog2011 (4) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... r-in-Appeal, this is admitted and taken up with the other Appeal No. C/1138/09. 3. The facts of the case are that the appellant filed a refund claim of Rs.7,16,023/- in first case and Rs.15,847/- in the second case for excess duty paid by them. In both the cases, refund of excess duty paid was claimed on the basis of availed trade discount of 5% on the invoice value. The duty was paid on the value assessed without considering the 5% discount. The Assistant Commissioner of Customs in his Orders-in-Original admitted the two refund claim on merit. However, he rejected the refund claim on the ground of unjust enrichment and credited the amounts to the Consumer Welfare Fund (CWF). 4. The learned Counsel appearing on behalf of the ONGC s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19) ELT 329 (Tri-Del), in para 6 of the order, it was held that judgment of the Hon'ble Karnataka High Court is in context of State Government unit producing items and supplying them to State Govt. authorities for free distribution and is not applicable to the commercial enterprises selling products to the buyers for money. This order was also confirmed by the Hon'ble Supreme Court in which a petition for Special Leave to Appeal No. 17359 of 2007 filed by the Cement Corporation of India against the CESTAT s order was dismissed. On the dismissal of application by the Hon'ble Supreme Court, learned Counsel further relied upon the judgment passed by the Supreme Court in Kunhayammed Vs. State of Kerala 2001 (129) ELT 11 (SC) and submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntant s certificate dated 31.3.2001 in support of their contention that amount involved in the refund claim was not passed on to the customers. 9. Learned SDR, appearing on behalf of the Revenue, submits that in their own case of ONGC reported in 2003 (156) ELT 794 (Tri-Del), it has been held by the Tribunal that bar of unjust enrichment is applicable for refund of duty on capital goods or any captive consumption. Against this Tribunal s decision, the ONGC has gone to the Hon'ble Supreme Court and their Civil Appeal was dismissed vide Supreme Court s decision reported in 2004 (163) ELT A207 (SC). A Review Petition was filed by the ONGC in Civil Appeal No. 9550 of 2003 which was also dismissed by the Hon'ble Supreme Court as reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is too late to produce the document at the appellate stage. Therefore, he contended that the order passed by the Commissioner (Appeals) is correct and does not require any interference. 11. After hearing the both sides and on going through the case records, I find that the goods involved in these cases are capital goods as contended by the appellant in their appeals. Both the refund claims have been rejected by the lower authorities on the ground of unjust enrichment. The Hon'ble Supreme Court has upheld the Tribunal s decision in their own case in which it was held that unjust enrichment is applicable to ONGC in respect of the capital goods. Their Review Petition and Curative Petition both were dismissed by the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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