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TMI Blog2023 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellants. The refund claims were rejected , but on appeal the ld.Commissioner (Appeals) of Allahabad Calcutta, held that the duty was paid under protest after following the procedure of Rule 233B and hence refund claim cannot be treated as time barred and remanded back the matter to the Assistant Commissioner for entertaining the refund claim, but the refund claims were rejected on the ground of unjust enrichment on 31st January, 1992. On going through the said and the certificate issued by the recipient of the goods, it is clear that the duty component has been borne by the appellants themselves. Moreover, the appellants have cleared the good to Bihar State Electricity Board under IBRD Financed Project and for the said clearance, the appellant is not liable to pay duty at all on their clearance, but the fact that the appellants were denied the benefit of SSI exemption, therefore, the appellants paid duty under protest and cleared their goods. Unjust enrichment - HELD THAT:- The adjudicating authority has gone beyond the scope of show-cause notice for entertaining the refund claim. As from the facts itself, it is clear that the appellants were not required to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow the exemption limit, but by clubbing the clearances of the said appellant, it fell beyond the exemption limit of Rs.7.50 lakhs. 2.2 The appellants were supplying the goods to Bihar State Electricity Board (BSED) under IBRD, Financed Projects. As BSED was not paying them the Excise duty, but the same was collected by the appellant from Government of India under IBRD, Financed Projects. 2.3 The Revenue is of the view that both the appellants are as a single entity and denied small scale exemption under Notification No.71/1978 dated 01.03.1978 and raised demand of Central Excise duty by clubbing their clearance value. 2.4 Various show-cause notices were issued to the appellants for denying the benefit of exemption Notification dated 01.03.1978 and demanded duty from the appellants. 2.5 The said show-cause notices were adjudicated. The benefit of exemption Notification was denied and by clubbing the clearances of the appellants, the demand of duty were raised. 2.6 The said orders were challenged by the appellants before this Tribunal and this Tribunal vide various orders dated 06.10.1986, 15.12.1986 25.10.1989, held that both the appellants cannot be treated as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.85 to 29.01.86 M/s G.P. Dalmia Sons 53/92 Dated 30.01.1992 V(18)74/45- Refund/88/Pt 76,064.82 15.04.80 to 08.09.80 54/92 Dated 30.01.1992 V(18)76/39- Refund/88/Pt 62,500.00 02.05.79 to 17.02.80 55/92 Dated 30.01.1992 V(18)76/46- Refund/88/Pt 5,56,798.66 30.04.87 to 31.03.88 56/92 dated 30.01.1992 V(18)(74)/48- Refund/88/Pt 7,23,219.00 1986-87 2.11 The said order was challenged before the ld.Collector (Appeals), who rejected the appeals filed by the appellants holding that it is immaterial whether the question of unjust enrichment was invoked in the show-cause notice prior to amendment made in Customs Laws (Amendment) Act, 1991 under Section 11B of the Central Excise Salt Act, 1944. Regarding insertion about the unjust enrichment or not, he also held that as the matter of fact that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing the show-cause notice on the issue of unjust enrichment, the Adjudicating Authority cannot be decided the issue of unjust enrichment and the Circular issued by the Department is binding on the adjudicating authority as held by the Hon ble Apex Court in the case of Paper Products Limited reported in 1999 (112) ELT 765 (S.C.). 3.3 He further submits that with regard to unjust enrichment, the appellant has not collected any duty from Bihar State Electricity Board, to whom they cleared all the clearances. To that effect, they produced the invoices as well as the certificate of payment issued by Bihar State Electricity Board. 3.4 In that circumstances, it is prayed that the refund claim be sanctioned to the appellants by setting aside the impugned order along with the interest. 4. One the other hand, the ld.A.R. for the Revenue, supported the impugned order and submits that the appellants have failed to pass the bar of unjust enrichment and it is mandate of the law itself by amending the provisions to Section 11B of the Act at the time of amendment w.e.f. 20.09.1991 that the bar of unjust enrichment shall apply to the pending cases. Therefore, refund claims have rightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to say that long before the notification a partnership deed was entered into with a view to evade duty. It is true that Shri G.P. Dalmia had a 50% interest in M/s Gillooram Gaurishankar. But that interest is on behalf of his joint family consting of his branch of the joint family. The appellants have also referred to several other circumstances namely, separate central excise licence, separate Income Tax assessment, separate sale tax assessment, separate location of the factories, etc. which also lend support to the case that these two firms are distinct legal entitles. The decision of the Tribunal in 1983 E.L.T. 1994 applies to the present facts and the partner of a firm cannot be considered as the firm itself. The manufacture of goods by M/s Gillooram Gourishankar cannot be considered as a manufacture for and on behalf of the appellants and vice versa. The Additional Collector has confirmed the demand without giving the benefit of Notification No. 71/78 only on the ground that Shri G.P. Dalmia had a 50% interest in M/s Gilloram Gaurishankar. The interest of Shri G.P. Dalmia in the appellant firm is a distinct legal concept compared to his interest in the partnership, M/s Golloor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed the impugned order only on 17.10.2014, which was issued to the appellant on 20th October, 2014, which shows that the impugned order has been passed after almost 22 years, which shows, how the lower authorities are serious about their working and duties by keeping the refund claim pending for more than 22 years. 9. The adjudicating authority has rejected the refund claim holding that the appellants have failed to pass the bar of unjust enrichment The appellants have produced copies of invoices to Bihar State Electricity Board and of payments issued by Project Authority. The same are enclosed here for understanding the fact that the appellant has passed the bar of unjust enrichment : 10. On going through the said invoice and the certificate issued by the recipient of the goods, it is clear that the duty component has been borne by the appellants themselves. Moreover, the appellants have cleared the good to Bihar State Electricity Board under IBRD Financed Project and for the said clearance, the appellant is not liable to pay duty at all on their clearance, but the fact that the appellants were denied the benefit of SSI exemption, therefore, the appellants paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made. 15. In view of the above, we hold that the appellants are entitled to claim the interest after three months from the filing of the refund claim till realization. Therefore, we allow the interest to the appellants after three months from the date of filing of the refund claim till its realization and the interest shall be paid at the rate of 12% as held by this Tribunal in the case M/s Shree Rajasthan Syntex Limited Vs. Commissioner of CGST Central Excise, Rajasthan vide Final Order No.50949-50950/2023 dated 20.07.2023, wherein the Tribunal has held as under : 9. The said order has been affirmed by Hon ble Punjab Haryana High Court, therefore I hold that the appellant is entitled to claim interest i.e. from the date of sanctioning of the rebate claim i.e. 4.02.2016 and 12.03.2016 for Rs. 36,98,880/- and Rs. 6,97,904/- respectively till the date of sanctioning of their rebate claim i.e. 31.03.2021 and 10.06.2021 respectively. It is pertinent to mentioning that the appellant is entitled to interest @ 12% P.A. as held by this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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