9911796707
TMI Blog2002 (10) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... under CET Sub-heading 2404.60 attracting lower rate of duty. They filed a refund claim with the proper officer of the department on 13-5-94 seeking refund of the differential duty paid on the clearances for the above period. This claim was rejected by the original authority as per order dated 29-1-96. The appeal preferred by the party against the order of the original authority was rejected by the Commissioner (Appeals). Hence the present appeal. 2. Heard both sides. 3. Ld. counsel for the appellants submits that both the original and first appellate authorities rejected the refund claim on the grounds of limitation and unjust enrichment. With particular reference to the order of the original authority, ld. counsel submits that the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R submits that there is no proof of any letter having been submitted by the party to the Assistant Collector of Central Excise saying that they would be paying excise duty under protest at tariff rate applicable to Sub-heading 2404.50. There was no valid protest under Rule 233B. Ld. SDR further points out that even the so-called protest letter, claimed to have been filed in August 1992 by the party, did not cover the period prior to the date of that letter. It is the further submission of ld. SDR that the order of the Commissioner (Appeals) is on all the issues adjudicated upon by the lower authority. Ld. SDR makes specific reference to sub-rule (6) of the above rule, which provided that, in cases where the remedy of appeal or revision was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) Whether the claim is sustainable on the issue of limitation. (iv) Whether the claim is hit by unjust enrichment clause. 6. We note that the questions at Sr. No. (ii) and (iii) above pertain to the time bar issue under Section 11B of the Central Excise Act. The original authority has effectually framed and considered only three questions and has decided all the questions against the assessee. That authority did not accept the protest letter as a valid register of protest under Rule 233B and considered the payment of duty as one having been made without protest. Accordingly, the original authority held the refund claim to be time-barred. On the question of unjust enrichment, the original authority held that this question was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsigned. Thus in the absence of such evidence, appellants had inter alia not fulfilled the conditions as laid down under Section 11B ibid had no locus standi to claim the refund. As such, the order passed by the lower authority rejecting the refund claim of Rs. 58,42,398/- is legally proper, correct and sustainable." 7. On a perusal of the above order of the Commissioner (Appeals), we find that ld. Commissioner (Appeals) rejected the refund claim on the sole ground of unjust enrichment. Constructively, the Commissioner (Appeals) considered the refund claim as not hit by limitation. There is no appeal of the Revenue before us challenging this aspect of the decision of the Commissioner (Appeals) and, therefore, we have to affirm the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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