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TMI Blog2017 (11) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... med the following substantial questions of law:- "(i) Whether the provisions of unjust enrichment inserted in Rule 9(B)(5) of the Central Excise Rules, 1944 vide Notification No.45/99-CE(NT) dated 25.6.1999 could be invoked and applied retrospectively on transaction effected prior to the date of the issue of the Notification i.e. during the period April, 1997 to March, 1998?. (ii) Whether the levy, collection and refund of duty under the Central Excise laws is to be examined/governed/adjudicated on the basis of provisions as in existence at the time of clearance of the goods or at the time of finalisation of provisional assessment?" 3. Counsel for the appellant has taken us to the first application which was made pursuant to the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised. The Invoicewise differential duty statement are enclosed with this order. During the year 1997-1998, the assessee has excess paid duty amounting to Rs. 106335/- (BED Rs. 92464 + AED Rs. 13871). Accordingly the assessee is advised to apply for refund of duty excess paid during the period 1997-1998 to the Assistant Commissioner of Central Excise, Bhilwara under Section 11-B of Central Excise Act 1944." 4. He made an application for refund of excise duty where specific declaration is made which reads as under:- "2. We enclose the following documents in support of the claim. (a) Invoice pad two nos.(Quadruplicate for Assessee copy) Sr.No.1 to 100 (b) Differential duty statement Page Nos.01 to 22. (c) Final assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod from April, 97 to March, 98, in respect of the Yarn consumed captively for weaving of fabrics by the noticee in their weaving division. Thus, it is an undisputed fact that the refund claim was consequential of the final assessment of the yarn manufactured and consumed captively by the noticee in their own weaving division. In this respect the legal position is very well settled that, where the goods are captively consumed, there is no question of passing of incidence of duty to anyone else, since, the scheme of unjust enrichment envisaged the direct transfer of burden of duty alongwith sales of goods to the buyers. In the above premise appellants has supplied a copy of the judgment rendered by Hon'ble Tribunal in the case of Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally admitted in the Show Cause Notice. But amazing the show cause notice is silent on the point as to how the said judgement is not applicable in the instant case and we are required to provide the proof regarding the fact that incidence of duty has not been passed on to the buyers. This made us severally handicapped to understand nature of allegation sought to be raised in show cause notice, which render us ineligible to the refund claim under reference. Since we ourselves are the buyers in the instant case and the doctrine of unjust enrichment envisaged the direct transfer of burden of duty alongwith the sales of goods to the buyers, therefore, there is no question of passing of incidence of duty to anyone else. Hope Your Honour will ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed on to ultimate customers. Therefore, principle of unjust enrichment is applicable." 8. He has taken us to the order dated 9.9.2003 Annexure.5 and ultimately, the Tribunal has passed the order dated 25.4.2005 after relying on the decision in the case of Hindustan Lever Ltd. Vs. CCE, Ghaziabad, 2004 (171) ELT 12 wherein it has been held as under:- "the authorities below have invoked the above said principle of unjust enrichment and disallowed the refund claims. The learned counsel has produced the copy of the judgment rendered in the case Hindustan Lever Ltd. Vs. CCE, Ghaziabad, 2004 (171) ELT 12, wherein it has been observed that even if the assessments pertain to the financial years prior to the amendment in Rule 9B(5) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the competent authority i.e. Superintendent, Central Excise Range-I has passed the order of refund, it will not be appropriate to adjudicate the same issue in a refund application preferred by the assessee, more particularly when he has specifically made a declaration and last time when the matter was argued, counsel for the appellant has specifically made the point that the tax which has been paid was part of the price which has been recovered. 13. Taking into account the averments which are made, in our considered opinion, the Tribunal and all other authorities committed a serious error in refusing to refund the amount and after the order passed which was not challenged. 14. In that view of the matter, both the issues are required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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