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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 ..... its' 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. 1,01,21,225/- on the basis of the CESTAT's order No.A/205 to 211/08/WZB/C.1/EB dated 14.02.2008. The claim was not supported by the original TR-6 challan and copy of PLA and other supporting documents in support of proof showing that the amount claimed is not hit by clause of unjust enrichment. A letter was issued to them by the Supdt. on 8.5.2008 informing that the claim will be treated incomplete till the submission of all relevant documents. The appellants vide their letter dated 27.6.2008 have submitted the original documents as called for vide letter dated 8.5.2008. However, they failed to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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 applicability of Sec.11B of the Central Excise Act, rejected the refund claim. The appellants are entitled to the refund because the amount was paid as a security deposit and not as a duty and therefore, it is not a benefit. He submitted that the decision of the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. has to be read with the provisions of unjust enrichment under Sec.11B which relates to claim of refund of duty. He contended that security deposit made during the investigation has nothing to do with traders who deal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Addl. Commissioner (A.R.) appearing for the Revenue reiterated the findings of the Commissioner(Appeals) and submitted that in view of the Hon'ble Supreme Court's decision in the case of Sahakari Khand Udyog Mandal Ltd. the provisions of unjust enrichment are applicable to each case of refund and doctrine of unjust enrichment can be invoked to deny benefit to which a person otherwise is not entitled and before claiming of refund the appellant is required to show that he has paid that amount from his own fund an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 have taken credit of Rs. One crore on 27.2.1999 and they have made Debit Entries vide Entry No.1611 and 1612 both dated 27.2.1999 and Debit Entry No.1731 dated 15.3.1999. On going through the TR-6 challan enclosed alongwith the refund claim it is mentioned 'Adhoc deposit towards A/C of the union Excise duties pending disputes and paid under protest and without prejudice' which shows that the deposit is made towards account of the union excise duties. Similarly while going through the Debit Entry made i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss." 8. In view of the fact that the amount sought to be claimed by the appellants was paid towards union excise duty, the claim is clearly hit by the clause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation 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 investigations. This case is not applicable to the facts in the present case before us. In the case of CC(Appeals) vs. PSI Data Systems, duty was deposited by the assessee, after adjudication order was passed. The Tribunal in this case has held that Revenue is not correct in raising the ground of unjust enrichment as the duty was deposited by the assessee after the adjudication order passed. The facts of this case are not applicable to the present case as in the appeal before us, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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