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TMI Blog2014 (1) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority and the first appellate authority in para 13 of his OIA dt 29/8/2009 has also observed that appellant has not submitted any proof in this regard. In the interest of justice, this matter is required to be remanded back to the original adjudicating authority to decide the issue in the light of principles of unjust enrichment laid down by the supreme court. Appellant will produce all the documentary evidences available with them in support of their claim that the duty refund sought for has not been recovered from any other person - Decided in favour of assessee. - Appeal No. : ST/171/2008-SM - ORDER No. A/10014 / 2014 - Dated:- 3-1-2014 - Mr. H.K. Thakur, J. For the Appellant: Shri S T Vyas (Adv.) For the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of M/s GE Nuovo Pignone, Mumbai. The following has been observed in para - 4. I find that the applicant has produced original copy of TR-6 Challan No. 004 dated 19/10/2005 in evidence of their payment of Service Tax. They have mentioned Disputed Service Tax for the period July 2003 to 9, September, 2004 in the said Challan. Since the duty has been paid under protest, on raising of unjust enrichment under section 11B and doctrine of unjust enrichment under section 12B of Central Act, 1944, is not applicable in this case. 4.1 Further, Commnr (A) has observed as follows in para 6 in the case 0f M/s GE Nuovo Pignone, Mumbai c/o The Arvind Mills Ltd., Gandhinagar under OIA No. 141/2006(Abd-III)CE/OK/Commnr(A) dt 1/9/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of NIIL and since NIIL had sold the product to the respondent herein, the respondent was entitled to the benefit of the second proviso to Section 11B(1) which inter alia stated that limitation of six months shall not apply where duty had been paid under protest. We do not find any merit in this argument. In the case of Bombay Tyre International Ltd. (supra), it has been held by this Court that Section 3 of the said Act is a charging section whereas Section 4 is a computation section which covers assessment and collection of excise duty. That the basis of assessment under Section 4 was the real value of excisable goods which included manufacturing cost and manufacturing profit but excluded selling cost and selling profit. That the price char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer, whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer (distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of on account payment made under protest by the manufacturer without complying with Section 11B of the Act. 7. In view of the above law laid down by Supreme Court doctrine of unjust enrichment has to be looked into even in cases of duty paid under protest. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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