2014 (2) TMI 445

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..... to sub-section (1) of Section 11B along with definition of ‘relevant date’, there is no room for any apprehension - no refund shall be ordered unless claimant establishes that he has not passed on the burden to others. Tribunal committed no error in recording the findings that the claim was barred by time, as even on the procedure prevalent prior to Mafatlal’s case, Rule 223B was not fully complied with. If it is necessary to show that burden has not been passed on to the consumer, Rule 223B had to be complied with, and in that case not only endorsement in the PLA account but also gate passes should have indicated that the passes have been issued under protest - Decided against assessee. - Central Excise Reference No. 49 of 2002 - - - D .....

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..... ived in the office of the Asstt. Commissioner on 23-7-1990. The claim was rejected. Against this rejection the appellants pled appeal before the Collector (Appeals). Ld. Commissioner (Appeals) examined this case and observed the view of the judgment of Calcutta High Court in Haryana Plywood v. CCE - 1994 (74) E.L.T. 224 about the theory of undue enrichment is not to be applied to pending claims as the same is in a Customs case and moreover the judgment of the Supreme Court in Union of India v. Jain Spinners - 1992 (61) E.L.T. 321 (S.C.) is different from that. Even though refund was applied in Sept. 91, this will attract the undue enrichment principle in view of the Supreme Court judgment and the amount of Rs. 64,450/- will not be admissib .....

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..... er observed that after the decision of the Apex Court in Mafatlal Industries Ltd. [1997 (89) E.L.T. 247 (S.C.)], laying down the law relating to unjust enrichment, and on the basis of which the amended Section 11B was inserted in the Central Excise Act, where a person proposes to contest his liability by way of appeal, revision in the higher courts, he would naturally pay duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests levy of duty, its rate, classification or any other aspect. If one reads second proviso to sub-section (1) of Section 11B along with definition of relevant date , there is no room for any apprehension. 8. The Supreme Court thus h .....

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