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TMI Blog2011 (11) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... ghtly been rejected by the lower authorities. - Decided against the assessee. - E/1977/10 - Final Order No. A/1018/2011-WZB/C-II(EB) - Dated:- 30-11-2011 - Mr. S.S. Kang, Mr. Sahab Singh, JJ. Appearance Shri Bharat Raichandani, Advocate for Appellants Shri Y.K.Agarwal, ACAR for Respondent Per : Sahab Singh This is an appeal filed by M/s.Harinagar Sugar Mills Ltd. (hereinafter referred to as 'the appellants') against the order passed by the Commissioner of Central Excise (Appeals), Mumbai. 2. The brief facts of the case are that the appellants are the manufacturers of 'Biscuits' falling under Chapter 19 of the Central Excise Tariff Act. They have filed a refund claim on 21.4.2008 for an amount of Rs. 1,01,21,22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been retained by them and the same has not been passed on to their customers they failed to do so. Hence this appeal. 3. Ld.counsel appearing for the appellants submits that the deposit for which the refund claim was filed was a security amount and not a duty amount and the unjust enrichment clause applies to duty amount and not to the deposit made by the appellants. He submitted that the authorities below acted contrary to the law and applied the clause of unjust enrichment and applying the Hon'ble Supreme Court decision in the case of Sahakari Khand Udyog Mandal Ltd. vs. Commissioner of C.Ex. Customs - 2005 (181) ELT 328 (S.C.), wherein it was held that doctrine of unjust enrichment would be attracted irrespective of applicabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Ltd. -2006 (206) ELT 370 (T); 2) Commissioner vs Motorola India Pvt. Ltd. -2008 (221) ELT 489 (Kar.); 3) Suvidhe Ltd. vs UOI - 1996 (82) ELT 177 (Bom); 4) Mahavir Aluminium Ltd. Vs CCE, Jaipur -1999 (114) ELT 371 (S.C.); 5) Jalan Dyeing Bleaching Mills vs.CCE, Mumbai - 2011 (272) ELT 408 (Tri-Mum); 6) Jayant Glass Inds.(P)Ltd.vs CCE,Kolkata - 2003(155)ELT 188(Tri-LB) 7. CCvs PSI Data Systems 2009(239)ELT 304 upheld by Karnataka High Court He finally submitted that the amount sought to be refunded in this case was a deposit and not a duty. Therefore, provisions of unjust enrichment are not applicable to this case. He, therefore, requested that the Order-in-Appeal passed by the Commissioner needs to be set aside. 4. Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ichment provided under Sec.11B of the Central Excise Act are applicable in the present case where the refund claim was filed by the appellants. The appellants have not been able to submit any document in support of their claim that the burden of the amount sought to be refunded was not passed on to their buyers. On the other hand, they are relying on the decisions passed by the Tribunal holding that the deposit made during the investigations will not attract the provisions of unjust enrichment. 6. The refund claim was submitted by the appellants on 18.4.2008. Along with the refund claim the appellants have submitted a copy of TR-6 Challan No. 099/98-99 dated 27.2.1999 for Rs. One crore and also submitted a copy of the PLA in which they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Sahakari Khand Udyog Mandal Ltd.(supra). In para 48 of which the Hon'ble Supreme Court has given a clear finding that doctrine of unjust enrichment will be applicable if the burden has passed on the consumers. For the sake of convenience, para 48 of the judgment is reproduced below: "From the above discussion, it is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to the doctrine. That, however, does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the Debit Entry in the PLA clearly show that the amount was differential excise duty. Therefore, the cited case is not applicable to the present case. In the case of Jayant Glass Inds(P)Ltd vs CCE, Kolkota, the Tribunal in its earlier order ordered refund of Rs. 9,19,286/- deposited by the appellants during investigations since the Revenue rejected the refund as time barred. This order was passed by the Tribunal on Misc.application filed by the appellants in that case for implementation of the Tribunal's order. In the order nowhere it is mentioned that refund was rejected on the ground of unjust enrichment and the Tribunal has allowed refund stating that the ground of unjust enrichment not applicable to the amount paid during the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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