9911796707
TMI Blog2011 (5) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... st enrichment the appellant has been able to make a case - appeal is allowed - E/47/04 - Mum - - - Dated:- 10-5-2011 - Shri Rakesh Kumar, Shri Ashok Jindal, JJ. Appearance Shri D.H. Nadkarni, Advocate for Appellant Shri V.K. Singh, SDR for Respondents Per: Ashok Jindal This appeal is filed against the order of rejection of their refund claim on account of limitation as well as on account of unjust enrichment as contained in Section 11B of the Central Excise Act, 1944. 2. Brief facts of the case are that the appellant are engaged in the manufacture of stranded wires of steel which are intermediate products and the same are used as inputs to manufacture the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sister unit/group companies. A show-cause notice was issued for adjudication of differential duty while adjudicating, the show-cause notice was dropped and it was held that nothing was payable by the appellant. Moreover, it was held that the supplementary invoices issued by the appellant were void for the purpose of taking MODVAT/CENVAT credit. The said order was not challenged by either of the party and attained finality. In pursuance of the said adjudication, the appellant filed a refund claim of Rs.9,48,509/-. While entertaining the refund claim, a show-cause notice was issued and the same was adjudicated by denial of refund claim which was confirmed by the lower appellate authority as time barred as well as the refund claim is hit b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the refund claim is not barred by limitation and relied on in the case of CCE Ahmedabad vs. Shayona Enterprises - 2008 (230) ELT 378 (Tri. - Ahmd.) and Commissioner of Central Excise, Kolkata III vs. Vegetable Products Ltd. - 2009 (247) ELT 180 (Tri. Kolkata). He also submitted that the decision in the case of Sahakari Khand Udyog Mandal Ltd. vs. CCE Customs - 2005 (181) ELT 328 (S.C.) is not applicable to the facts of this case as in that case the claimant has already charged and collected the duty from the customers and the same was transferred to Consumer Welfare Fund which is not in this case. In alternative, he submitted that the amount in dispute although collected from their sister concern / group companies by way of supplement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Customs (Import), Mumbai - 2006 (200) ELT 259 (Tri. - Mum) this Tribunal has held that the burden of amount deposited whether passed on or not, amount deposited pursuant to High Court order while case is pending adjudication - doctrine of unjust enrichment is invocable. He further submitted that in the case of United Spirits Ltd. vs. Commissioner of Customs (Import), Mumbai - 2009 (240) ELT 513 (Bom.) the Hon'ble High Court has held that wherein pursuant to provisional assessment the provisions of unjust enrichment is applicable to refund consequent upon to final assessment. Therefore, the impugned order is sustainable. The appeal filed by the appellant is required to be dismissed. 5. Heard both sides. 6. We have gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.59 but only claimed Rs.5,42,342.90. Therefore, we find that in that case the issue before the hon'ble apex court was of refund of duty as per Section 11B of the Central Excise Act, 1944, where the duty was paid and rebate claim of duty was filed which is not in this case. In this case the amount paid by the appellant was not appropriated as duty by the adjudicating authority. In the case of United Spirits Ltd. (supra) the issue before the Hon'ble High Court was that where an amount deposited in pursuant to provisional assessment, doctrine of unjust enrichment is applicable to refund consequent upon final assessment. In that case also the amount provisionally deposited was appropriated against as duty on finalisation of the assessment whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 11B of the Central Excise Act, 1944 are not applicable. In the case of Godrej Industries Ltd. vs. Commissioner of Customs, Mumbai - 2007 (213) ELT 259 (Tri. Mum) this Tribunal has held that the deposits made during pendency of the appeal automatically become refundable to assessee on success of their appeals, provisions of unjust enrichment are not applicable. We find that the above said case laws supports the claim of the appellant, therefore, the provisions of Section 11(B) of Central Excise Act, 1944 are not applicable to the facts of this case as there is no appropriation of the amount deposited by the appellant as duty. In alternative, we have gone through the records produced by the appellant wherein it has been sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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