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TMI Blog2014 (12) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... rebate claim and balance 40% after pre-audit. This rebate was being given as credit entry in the PLA and this PLA credit could be used for payment of duty on the clearances of the sugar. In this case, the rebate claim had been presented in September 1982 and 60% of the amount was sanctioned in June 1983. Subsequently while considering the payment of balance amount, the Assistant Commissioner, after issue of show cause notice, rejected the rebate claim as time barred. One of such exception is the case where the incidence of duty whose refund is sought has been borne by the assessee claiming the refund. The rebate claim in respect of excess production of sugar during lean season in terms of Notification No. 132/82-C.E. is not mentioned am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Rules, 1944 prescribed certain quantum of exemption on per quintal basis in respect of free sale of sugar and levy sugar produced in a factory during the period from 1-5-1982 to 30-9-1982, which is in excess of the average production of sugar during the corresponding period of the preceding three sugar years. The appellant towards the end of the sugar season, filed a rebate claim claiming that the excess production during the period from 1-5-1982 to September 1982 was 43,875 quintals of sugar. This rebate claim was filed by them on 3-9-1982. As per the rebate scheme of this exemption notification, 60% of the rebate claim was required to be sanctioned on provisional basis on presenting the rebate claim and the balance amount was to be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustomers and, as such, had not borne the incidence of the duty whose refund is being claimed. The Assistant Commissioner accordingly rejected the rebate claim. On appeal being filed to Commissioner (Appeals) against this order, the Commissioner (Appeals) dismissed the appeal for non-compliance of the provisions of Rule 213 of the Central Excise Rules, 1944. On further appeal to the Tribunal, the Tribunal vide final order dated 19-10-2001 held that the appellant should have been given an opportunity to remove the defects in filing of the appeal, which were curable and remanded the matter to get the defects rectified and decide the appeal as per the law. In de novo proceedings, the Commissioner (Appeals) vide order-in-appeal dated 27-5-2005 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork, is rejected on the ground of unjust enrichment, the whole purpose of such exemption notification would be defeated. He, therefore, pleaded that the impugned order upholding the rejection of the rebate claim on the ground of unjust enrichment is not correct. 5. Shri Yashpal Sharma, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and relied upon the Apex court judgment in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE CUS reported in 2005 (181) E.L.T. 328 (S.C.), wherein with regard similar exemption Notification No. 108/78-CE providing for partial exemption from duty in form of rebate in respect of excess production of sugar, the Apex court held that the same would be subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in June 1983. Subsequently while considering the payment of balance amount, the Assistant Commissioner, after issue of show cause notice, rejected the rebate claim as time barred. The matter, thereafter, travelled through the Commissioner (Appeals) up to the Tribunal and the Tribunal decided the matter only in 1996 holding that the rebate claim is not time barred and directed the Assistant Commissioner to process the claim on merits. However, w.e.f. 20th September 1991 Section 11B of the Central Excise Act has been substituted by a new provision. In the new Section 11B, there was no provision for suo motu refund arising out of an appellate order and even if the refund claim arises out of order-in-appeal passed by the Tribunal or Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the rebate, they would not be eligible for the same unless they prove that they had borne the incidence of duty whose refund/rebate is being claimed by them. But in this case, it is not disputed that the incidence of duty whose refund is claimed has been passed on. In view of the non obstante provisions of sub-section (3) of Section 11B, all refund claims made during the period w.e.f. 20th September 1991 would be subject to the principle of unjust enrichment incorporated in sub-section (2) of Section 11B. We find that same view has been taken by the Apex Court in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE CUS reported in 2005 (181) E.L.T. 328 (S.C.), wherein the Apex Court, with regard to grant of rebate in respect of excess pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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