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TMI Blog2024 (6) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... , which means that the goods in question have suffered total rate of duty of 21% whereas duty is payable at the rate of 14%. Therefore, the excess duty paid by the appellant is required to be refunded, as instead of charging duty from the customers at the rate of 14%, the appellant charged duty at the rate of 7% at the time of clearance. Thus, in these circumstances, the appellant has passed the bar of unjust enrichment - the appellant has passed the bar of unjust enrichment. Whether the refund claim(s) filed by the appellant are barred by limitation or not? - HELD THAT:- The facts of the present case are similar to that in the case of M/S. BANSAL BISCUITS PRIVATE LIMITED VERSUS COMMR. OF CENTRAL EXCISE SERVICE TAX, PATNA [ 2023 (11) TMI 61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Public Distribution System (PDS) 2.1. The appellant claimed that due to some urgent market requirements, they had to sell some quantity of SKO so received to non-PDS customers. Since there is no exemption granted to SKO cleared to non-PDS customers, the appellant claimed that they paid duty at the rate of 7% ad valorem by utilizing the CENVAT Credit account after availing exemption under Notification No. 29/2002-C.E. dated 13.05.2002. However, they would realize subsequently that payment of duty made by them was a mistake of law, as duty should have been made by the refineries in which the products were manufactured and removed, at applicable rates. Accordingly, with a view to regularize the irregularity, they informed the refineries of Hal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said goods by the appellant, at the rate of 14%, and the appellant had paid duty at the time of clearance at the rate of 7%, in these circumstances, the goods in question have suffered 21% rate of duty instead of 14%. Therefore, he submits that the appellant is entitled to claim refund of 7% of the excess duty paid by them and have recovered only 7% duty instead of 14% from their customers; in these circumstances, it is contended that the appellant has passed the bar of unjust enrichment. 6.1. With regard to the issue of limitation, it is his submission that it is a fact that, in the instant case, the appellant is not liable to pay duty at all and therefore, whatever amount has been paid by them is an amount which is refundable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were cleared on payment of duty. Later on, the manufacturers of the said goods have paid duty at the full rate i.e., 14%. In these circumstances, the goods in question have suffered 14% rate of duty, which has been borne by the appellant themselves. 10.1. The appellant paid 7% duty at the time of clearance, which means that the goods in question have suffered total rate of duty of 21% whereas duty is payable at the rate of 14%. Therefore, the excess duty paid by the appellant is required to be refunded, as instead of charging duty from the customers at the rate of 14%, the appellant charged duty at the rate of 7% at the time of clearance. Thus, we find that in these circumstances, the appellant has passed the bar of unjust enrichment. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Central Excise Service Tax, Patna [Final Order No. 77489 of 2023 dated 17.11.2023 in Service Tax Appeal No. 75363 of 2016 CESTAT, Kolkata] wherein the Tribunal, relying upon the Ld. Third Member reference in the case of M/s. Credible Engg. Construction v. Commissioner of C.Ex., Hyderabad [Final Order No. A/30082/2022 dated 05.09.2022 CESTAT, Hyderabad], observed as under: - 13. Based on the decision of Third Member Reference Bench, the CESTAT, Hyderabad vide its Final Order No. A/30082/2022 dated 05/09/2022 in the Credible Engg. Construction Vs. CCE, Hyderabad, has held as under:- 46. In view of the difference of opinion, the following questions arise for consideration by learned 3rd Member: (1) Whether the limitation prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led any Appeal by their grievance, if any about non-addressing of the unjust enrichment issue. This being so, when the Department itself has not addressed this issue at lower stages nor agitated before us by way of proper Appeal, such submissions made during the Final Hearing cannot be entertained by the Tribunal at this juncture. Therefore, the objection with regard to Unjust Enrichment cannot be sustained. Even otherwise, in the cited decision of the Tribunal in the case of Credible Engg. (cited supra), it is held that Section 11B Provisions are not applicable which would also include the provisions of Unjust Enrichment under Section 11B also not being applicable in respect of such refund cases. 12.2. The facts of the present case are sim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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