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TMI Blog2000 (12) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of white cement under sub-heading 2502.20 chargeable to specific rate of duty and hence, the bank guarantee for Rs. 88 lakhs submitted by them for the amount equivalent to the differential duty between Tariff Heading 2502.20 and 2502.90 as per the direction of Rajasthan High Court and subsequently encashed by the Department is liable to be refunded to them. The Department alleged that the claim of the appellants for refund of duty attracts the doctrine of unjust enrichment in terms of provisions of Sections 12A and 12B of the Central Excise Act, 1944. Accordingly, a show cause notice was issued to the appellants asking them to explain as to why the refund claim should not be sanctioned and credited to Consumer Welfare Fund on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the provisions of Section 11B. He also argued that pursuant to the order of the Hon'ble Rajasthan High Court, the goods were provisionally assessed and, therefore, Section 11B is not applicable and that since Section 11B was not applicable to the facts of the present case, the question of unjust enrichment did not arise. The learned counsel also submitted that there was no unjust enrichment as the appellants had not passed on the burden of duty to the customer. He, therefore, prayed that the amount encashed by the Department in the form of bank guarantee may be refunded to the appellants. In support of his various contentions, he relied upon the decisions of the Apex Court in the cases of Oswal Agro Mills Ltd. and Jupiter Cement Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that case squarely applies to the facts of the present case and, therefore, prays that the appeal may be rejected. 6.On careful consideration of the rival submissions made before us and the cases cited and relied upon by both the parties and also the evidence on record, we find that the short point for determination in this appeal is whether encashment of bank guarantee amounts to payment of Central Excise duty or is it only a security? On perusal of the decision in the case of Union of India v. Jain Spinners Ltd. we find that in that case the Hon'ble Supreme Court passed the following order :- "Rule. Interim stay on condition that petitioners (respondents herein) deposit in this Court an amount of Rupees Twenty-eight lacs by 31st Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd are covered by the observations of the Apex Court in para 10 of the judgment in the case of Oswal Agro Mills Ltd. The findings are : "The question, therefore, is whether it can be said that the furnishing of a bank guarantee for all or part of the disputed excise duty pursuant to an order of the Court is equivalent to payment of the amount of excise duty. In our view, the answer is in the negative." We further note that this decision of the Apex Court is followed by the Tribunal in the case of Jupiter Cement Industries Ltd. reported in 1998 (102) E.L.T. 308. in para 7 of this order of the Tribunal, it has been observed : "The Supreme Court had before them in M/s. Oswal Agro Mills Ltd. (supra) an identical issue where under the directi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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