9911796707
TMI Blog1991 (7) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case reported in 1985 (21) E.L.T. 562 (M/s. Uday Textile Engineering) that the work undertaken by the petitioner does not amount to manufacture. The Assistant Collector of Central Excise by order dated January 21, 1986 accepted the claim of the petitioner. 2. The Superintendent of Central Excise by letter dated February 17, 1986 directed the petitioner to file advance classification list in view of the new Tariff Act becoming effective from March 1, 1986. The petitioner filed classification list on February 24, 1986 and pointed out earlier order dated January 21, 1986 passed by respondent No. 3 approving the product as non-excisable. The Superintendent of Central Excise directed clearance of the product as excisable under sub-head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isen as a result of the order passed by the Appellate Authority and consequently the limitation cannot be claimed under Section 11B(3) of the Central Excises and Salt Act. The petitioner also pointed out that it is not permissible for the Department to deny refund on the principle of unjust enrich ment in view of catena of decisions of this Court. 4. The Assistant Collector by order dated June 27, 1991 rejected the six refund claims on the ground that the claims are barred by limitation. The Assistant Collector also held that the petitioner is not entitled to refund on the principle of unjust enrichment. The decision of the Assistant Collector is under challenge in this petition filed under Article 226 of the Constitution of India. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of procedural Rule 233B of Central Excise Rules. Rule 233B sets out the procedure to be followed in cases where duty is paid under protest, and sub-rule (4) prescribes that an endorsement "duty paid under protest" shall be made on all copies of the gate passes, application for removal and form RT 12. We enquired from Shri Desai as to what is the material to suggest that requirements of sub-rule (4) were not complied with and Shri Desai had no answer. Shri Desai also submitted that proviso to sub-rule (7) was also not complied with. The proviso prescribes that in a case where the assessee files an appeal or revision against order of classification, then the duty shall be allowed to be deposited under protest. Shri Desai submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner is entitled to refund in view of the order passed by the appellate authority. The effect of the order passed by the appellate authority cannot be denied by resort to doctrine of unjust enrichment. Apart from this consideration, Shri Desai did not file any affidavit to establish that the petitioner did pass the burden of duty to the customers. In these circumstances the doctrine of unjust enrichment, even if available, is not attracted. 8. Accordingly, petition succeeds and the impugned order is set aside and respondents are directed to grant refund claimed by six refund applications after verification within a period of four weeks from today. In default, the Department shall refund the amount with interest at the rate of 15% per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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