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TMI Blog2016 (5) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... e made pre-deposit of Rs. 38.99 Crore in 1989 under protest. The appellant claimed to have made additional pre-deposit of Rs. 10 Crores under protest on 29/3/1991. Meanwhile, the dispute on dutiability of Lean Gas traveled upto this Tribunal wherein this Tribunal vide Final Order dated 16/7/2007 partly allowed the appeal thereby Tribunal dropped the demand for the period from 31/3/1981 to 30/11/1984. For the balance period after December, 1984 the matter was remanded to the Adjudicating authority for the purpose of re-quantification of the demand. Aggrieved by the portion of the order by which demand was dropped for the period 31/3/1981 to 30/11/1984, Department filed appeal before the Hon'ble Bombay High Court which was dismissed and the Tribunal order dated 16/7/2007 was upheld Hon'ble High court's vide order dated 16/8/2008. The appellant on 18/9/2008 filed refund claim for an amount of Rs. 48,99,65,149/- with the Jurisdiction Asstt. Commissioner. The Asstt. Commissioner vide show cause notice dated 31/12/2008 proposed rejection of refund claim on the allegation that original documents as proof of payment were not submitted alongwith refund claim. A corrigendum dated 3/2/2009 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SURBHI ENTERPRISE Versus COMMISSIONER OF C. EX., AHMEDABAD [2007 (210) E.L.T. 588 (Tri. - Ahmd.)] (f) Commr. of Cus. (Prev), Jamnagar Vs. Continental Petroluems Ltd[2009(234) ELT 333(Tri. Ahmd.] 3.1 As regard the rejection of claim on the ground that original TR 6 Challan was not submitted, he submits that the fact of appellants deposit of Rs. 49 Crores was well within the knowledge of the department and the Honble CESTAT. He submits that regarding the deposit of Rs. 49 Crores, it was declared in EA 3 forms of appeal, Honble CESTAT while disposing stay application vide stay order dated 3/5/2001 has recorded the contention of the appellant that they have deposited Rs. 49 crores. Revenue knew factual position that the appellant have deposited Rs. 49 Crores. The appellant averred on oath way back in 1992 in the verification of appeal filed before the Tribunal. He submits that there are chain of correspondence not only from the appellant to the department but also confirming the same from the department to the appellant regarding the deposit of Rs. 49 Crore which are sufficient evidences of payment of Rs. 49 Crores. The correspondence referred by him are listed below: (a) Lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government according to Administered Price Mechanism(APM), therefore the payment of duty otherwise not influenced price fixed on APM basis, for this reason also unjust enrichment is not involved. He also submits that appellant is Government of India undertaking, hence in such case question of unjust enrichment cannot arises. He placed reliance on following judgments: (a) PLAS PACK INDUSTRIES Versus COMMISSIONER OF CUSTOMS & C. EX., AHMEDABAD[2004 (167) E.L.T. 422 (Tri. - Mumbai)] (b) GUJARAT STATE FERTILIZERS & CHEM. LTD. Versus COMMR. OF C. EX., VADODARA[2005 (186) E.L.T. 607 (Tri. - Mumbai)] (c) COMMISSIONER OF C. EX., MUMBAI-I Versus SHETHIA AUDIO VIDEO PVT. LTD.[ 2003 (161) E.L.T. 452 (Tri. - Mumbai)] (d) COMMISSIONER OF CUS. & C. EX., MUMBAI Versus RESHAM SINGH & CO. P. LTD. [2003 (156) E.L.T. 270 (Tri. - Mumbai)] (e) QUALITY OFFSET PRINTERS Versus COMMISSIONER OF CUS. (IMPORT), MUMBAI [2008 (230) E.L.T. 671 (Tri. - Mumbai)] (f) State of Rajasthan & Ors. Vs. Hindustan Copper Ltd[1999(81) ECR 175(SC)] (g) SPIC Ltd Vs. Commissioner[2009(237) ELT 94(Tri. Chennai)] (h) S.A.I. L. Vs. Commissioner of Customs (Port), Kolkata[2008(230) ELT 647(Tri. Kolkata)] (i) C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Engineering Industries Vs. commissioner[2008(227) ELT A166(SC)] (h) Mafatlal Industries Ltd Vs. Union of India[2015(89) ELT 247(SC)] 5. We have carefully considered the submissions made by both sides. 6. We find that the issue arises for our consideration are as under: (a) Whether the refund claim can be sanctioned without availability of proof of payment in the shape of Original TR 6 Challan. (b) Whether the refund is time bar. (c) Whether the refund claim is hit by provision of unjust enrichment. 6.1 We find that after the claimed deposit of duty in two installments, the appellant made various correspondence which was responded by the department, the said correspondence are reproduced below: [Images / correspondence not reproduced since not legible] From the above correspondence, it can be seen that the appellant have time and again submitted that they have paid duty of Rs. 49 Crores and the same was acknowledged by the department in their letter, therefore it prima facie appears that the appellant have probably deposited the duty of Rs. 49 Crores, which is liable to be refunded as the dutibility of Lean Gas has finally been settled. We are of the view that me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of Rs. 49 Crores paid as pre-deposit and the same became refundable only after demand is dropped. In the present case the demand is dropped vide adjudication order dated 16/7/2007 and the refund claim was filed on 17/10/2007 i.e. well within the stipulated period from the date of Tribunal order. As per fact of the case, issue of time bar is in favour of the appellant in view of the judgment of Hon'ble Supreme Court in case of West Coast Paper Mills Ltd(supra) therefore we hold that demand is not time bar. 6.4 As regard the unjust enrichment, it appears from the record that the duty was not paid on consignment basis in respect of clearance of Lean Gas. The duty was admittedly paid much later than the clearance of the goods i.e. after issuance of show cause notice, the adjudication order, filing of appeal before the Commissioner(Appeals), therefore it is clear that the incidence of duty was at least not passed on to the customer, to whom the goods were supplied in respect of which duty of Rs. 49 Crores paid by the appellant. Contrary to this fact, Revenue could not produce any evidence that the amount of Rs. 49 Crores was recovered by the appellant either from the customers, to w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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