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TMI Blog2023 (12) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... sh in accordance with the direction given in the earlier remand order dated 20.07.2005. The appeal is disposed of by way of remand.' In disposing off the appeal of M/s Bhor Industries Ltd against order [order-in-appeal no. ZBN/49/M-V/98 dated 8th February1999] of Commissioner of Central Excise (Appeals), Mumbai, the Tribunal had held that 'The appellants herein are aggrieved by the rejection of their claims of refund of duty of Rs. 17,77,763.93 and Rs. 60,04,411.01 on the ground that the lower appellate authority wrongly proceeded on the basis that duty burden has been passed on to their customers and for which reason he has not at all considered the Chartered Accountant's certificate produced by them before the authorities below to substantiate their stand that they duty element has not been passed on to their customers. The text of memorandum of appeal before the Commissioner (Appeals) against the adjudication order establishes that there was no sale or buyer to pass on the incidence of duty by the appellants to their customers. This is being so, and since the appellants have also submitted the Customs Act, 1962's Certificate, which has not been looked into by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claims into three parts. The first for the period up to 20th November 1975, amounting to Rs. 16,81,671.79, which was held to be beyond the period of dispute covered by the decision of the Hon'ble Supreme Court; for the period remaining thereafter, till December 1975, that the appellant had not registered 'protest' in terms of rule 233B of Central Excise Rules, 1944 and that the whole of it, including the period from 1980-82 covered by the mandate of ineligibility, owing to 'unjust enrichment' in section 11B of Central Excise Act, 1944. 4. We have heard Learned Counsel for the appellant and Learned Authorised Representative at length. 5. Learned Counsel for the appellant placed reliance upon the decision of the Hon'ble Supreme Court in re Bhor Industries Ltd to establish that duty liability had not arisen at all, and, therefore, question of 'under protest' should not have been an issue owing to absence of a formal mechanism for such payment. Furthermore, reliance was placed on the decision of the Hon'ble High Court of Calcutta in Commissioner of Central Excise, Kolkata-III v. Alliance Udyog Ltd [2011 (266) ELT 171 (Cal.)] holding that '6. We find that the aforesaid Section 12B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure regarding unjust enrichment of finalization of provisional assessment will be applicable to the provisional assessment made after 1999 and not before that date as the proviso to Rule 9B in the form of sub-rule (5) did not have a retrospective effect. The doctrine of unjust enrichment therefore would not be attracted to the refunds pertaining to the finalization of the provisional assessment for the period prior to 1999 and sub-rule (5) to Rule 9B of the Central Excise Rules, 1944 will not operate retrospectively. The proviso to Rule 9B(5) would be made applicable only with effect from 25-6-1999 and therefore the principle of unjust enrichment cannot be made applicable to the refunds arising out of finalization of the provisional assessments pertaining to the period prior to 25-6-1999 even if the assessments are finalized after 25-6-1999.' 7. According to Learned Counsel for the appellant, the decision of the Hon'ble Supreme Court on excisability was not limited to the period after the filing of classification list in 1975. Furthermore, it is the contention that the Tribunal had, in its remand order, authorized the lower authorities to consider the special circumstances in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt referred above. Under such a circumstances the issue for the period prior to the filing of Classification list No. XIV/75 on 20.11.1975 claiming that the product to be non-excisable as they are not marketable: which was approved by the Jurisdictional Assistant Commissioner conditionally on 09.12.1975 does not arise. Further, the dispute about excisability arouse only after the Classification list No. XIV/75 was filed on 20.1 1.1975. It is this classification list that was the subject matter in appeal in Supreme Court. The issue prior to this period has attained finality and cannot be agitated after the matter was decided by Hon'ble Supreme Court. On this ground alone the refund claim for Rs. 17.77,763.93 for the period 01.03.1970 to 31.12.1975 is liable for rejection and the same has been correctly rejected as time barred.' does not appear to be consistent with the provisions of law. The first appellate authority has taken upon itself to infer that, with certain eventualities not occurring, presumption of 'not paid duty under protest' was to be operated as default. We find from the decision of the Hon'ble Supreme Court, in re Bhor Industries Ltd, that classification list ..... X X X X Extracts X X X X X X X X Extracts X X X X
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