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TMI Blog2011 (3) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... id through credit can only be allowed by way of credit and hence the same cannot be credited to the Consumer Welfare Fund - In the Order-in-Original No. 3/2002, it is stated that out of the total refund amount of Rs. 39.57 crores only Rs. 9.15 crores was paid in cash and the balance out of credit - The authorities below have held an amount of Rs. 15.77 crores to be time-barred and have ordered Rs. 23.8 crores to be credited to the Consumer Welfare Fund. When the amount paid in cash is even less than the time-barred refund amount, there is no question of crediting any amount to the Consumer Welfare Fund - Refund claim rejected on the ground of unjust enrichment and period of limitation both - Decided against the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... he said order of the lower authority. The department's appeal was on the ground that 17 claims were time-barred and hence the refund was not due and the amount could not, therefore, be credited to the Consumer Welfare Fund for the 17 claims. The department had no objection to the amount being credited to the Consumer Welfare Fund for the other 14 claims. The appellant-assessee's appeal was on the ground that they had not passed on the extra duty burden and hence they were entitled to the refund for the entire 31 claims. The lower appellate authority in her order has held that 17 claims are time-barred and for the remaining claims, she has upheld the order of the original authority for transferring the refund amount to the Consumer Welfare F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cost of the films and hence it cannot be said that they have unjustly enriched themselves. (iii) There was a dispute regarding the dutiability of films and hence it should be considered that duty on the same was all along paid 'under protest' even though no formal letter of protest was lodged and no formal order of provisional assessment was made. She cites the decision of the Tribunal in the case of U.P. Twiga Fiberglass Ltd. v. Commissioner of Central Excise, Meerut reported in 2000 (116) E.L.T. 537 (Tribunal) in which the matter was remanded to examine the assessee's claim to the effect that when sales realisation was much less than the cost of manufacture there cannot be a case of unjust enrichment. She also relies on the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit and utilise the same for payment of duty. The duty paid through such utilisation in any case, cannot be refunded nor can be credited to the Consumer Welfare Fund. He states that this is the main ground on which the department's appeal has been filed. He further states that the authorities below have rightly held that 30 (13+17) claims to be time-barred as these were not filed within the prescribed time-limit, no protest letter was lodged and there was also no provisional assessment. 6. We have considered the arguments from both sides and perused the records including the cited case laws. Out of the total 50 claims, 13+17 claims have been held to be fully time-barred and one more claim has been held to be partly time-barred by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected from the customers, the Tribunal cannot be called upon to add it to the government-regulated price charged by the appellant-assessee and compare the price plus duty against the cost and hold that the appellant-assessee has not passed on the excise duty burden to their customers, when they have actually done so. We find that in the case of Xerox Modicorp Ltd. v. Commisisoner of Central Excise, Mumbai reported in 2001 (134) E.L.T. 523 (Tri.-Del.), it was held that the appellant having charged excise duty separately to customers in the copies of relevant gate passes and the invoices filed by them, customers paid this amount to the appellant as duty of excise and, therefore, the refund claim was hit by bar of unjust enrichment. It was als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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