9911796707
TMI Blog2013 (8) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty. Accordingly, the appellant paid Central Excise duty of Rs. 9,25,975/- and filed refund claim of service tax paid earlier – Held that:- Relying upon the Mafatlal Industries Limited vs. UOI case [2004 (6) TMI 139 - CESTAT, MUMBAI], appellant would not be entitled to refund in terms of law settled by this case - Not only the doctrine of unjust enrichment is required to satisfy as per Section 11B of the Central Excise Act, 1944 but the time-bar aspect specified in the Section is also reqruied to be fulfilled - Prima-facie, the limitation and unjust-enrichment grounds will be applicable in the present case - Appellant has, therefore, not made out a prima facie case for the complete waiver of Rs. 7,01,680/- - Appellant directed to depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,25,975/- as Central Excise duty). Commissioner (Appeals) under OIA No. 728/2012/Commr(A)/RBT/RAJ dated 17.8.2012, set-aside the order in original under which the refund claim of Rs. 7,01,680/- was sanctioned and allowed as credit in Cenvat Credit account. Commissioner (Appeals) upheld the appeal filed by the department on the ground that refund is hit by unjust-enrichment under Section 11B of the Central Excise Act, 1944 and was also time barred under the said Section. 2. Heard both sides. It was argued by the advocate of the appellant that in this case, there is no unjust-enrichment as they have paid the total amount of Rs. 16,28,106/- representing both service tax and Central Excise duty and therefore, unjust enrichment is not applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the petitioner has already paid separately and second time under insistence of the department. Under the circumstances, the question of unjust enrichment cannot be applied. It is apparent from the above facts of this case before the Hon ble Gujarat High Court that duty was paid twice on the same transaction and therefore, the duty payment for the second time was not held to be recovered from the customers amounting to unjust-enrichment. In the present case, the first duty payment of service tax was duly reflected in the invoices and recovered from the customers. Service tax was not paid for the second time by the appellants therefore, the facts before the Hon ble High Court were different than the facts of this case, as the service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Mafatlal Industries Limited vs. UOI. Therefore, not only the doctrine of unjust enrichment is required to satisfy as per Section 11B of the Central Excise Act, 1944 but the time-bar aspect specified in the Section is also reqruied to be fulfilled. 7. In view of the above, any refund claim of service tax paid was required to be filed under Section 11B of the Central Excise Act, 1944 and prima-facie, the limitation and unjust-enrichment will be applicable. Appellant has, therefore, not made out a prima facie case for the complete waiver of Rs. 7,01,680/- and is required to be put to some conditions. Appellant is therefore, directed to deposit an amount of Rs. 1,00,000/- (Rupees one lakh only) within eight weeks from the date of pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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