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TMI Blog2003 (5) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... doctrine of unjust enrichment or not as propounded by the Constitution Bench of the Apex Court in the case of Mafatlal Indus. Ltd. v. UOI - 1997 (89) E.L.T. 247 (S.C.). 3.The learned Counsel has contended that since the duty sought to be refunded, was paid under protest by the appellants, the above said doctrine of unjust enrichment did not apply and as such the claim of the appellants for refund of the duty, though paid under the provisional assessment, had been wrongly rejected by the authorities below. The learned Counsel, in support of his contention, has placed reliance on the Apex Court judgments in the Sinkhai Synthetics Chemicals Pvt. Ltd. v. CCE, Aurangabad, 2002 (143) E.L.T. 17 (S.C.); Hindustan Metal Pressing Works v. CCE, Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pter 49, while the Department wanted the classification under Chapter 48 (sub-heading 4819.12). In the face of this classification dispute, the assessments were made provisional under Rule 9B of the Central Excise Rules. The duty was paid by the appellants under protest, pending the final assessment and approval of the classification list of the appellants. The final assessment order went against the appellants as the classification of the goods was held under Chapter 48 of the CETA. The appellants did not accept that order, and they challenged the correctness of that order under sub-rule (5) of Rule 9B before the Tribunal. The Tribunal held the classification issue in favour of the appellants. Thus, the duty was paid by the appellants unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched." 7.In that very judgment, in paras 74, 77 99, the Apex Court has observed that "in a claim for refund of duty, the petitioner has to allege and establish that he has not passed on burden of duty to others. Where he himself has not suffered any loss or prejudice (having passed on the burden of the duty to others), there is no justice or equity in refundin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y avail to the appellants. In that para, the Apex Court has only observed that "as per the provisions of sub-rule (5) of Rule 9B when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed and if the duty provisionally assessed falls short or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be. Any recoveries or refund consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. The Apex Court has also further in that very para made clear that if the final order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim of the assessee by holding that no material was produced to show that the burden of duty paid under protest was not passed on to the consumer. In that case also, the Apex Court relied upon the judgment of the Constitution Bench in the case of Mafatlal Indus. Ltd., supra. In the case of Sinkhai Synthetics Chemicals Pvt. Ltd. v. CCE, Aurangabad, 2002 (143) E.L.T. 17 (S.C.), referred by the Counsel, the assessee claimed the benefit of exemption notification, but the same was challenged by the Revenue. The matter went upto the Tribunal which decided in favour of the assessee. In the interregnum, the assessee paid the excise duty under protest. After the decision of the Tribunal in his favour, he lodged the claim for the refund. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as detailed above. 11.In the case of Tecil Chemicals Hydro Power Ltd. v. Commissioner of Central Excise, Cochin - 2003 (151) E.L.T. 136 (CEGAT), cited by the Counsel, it was found that incidence of duty was not passed on to the buyers by the assessee and for that reason it was observed that the refund claim of the duty amount paid under protest was not hit by the principle of unjust enrichment. But in the instant case, as observed above, the facts are totally different. 12.Similarly, in the case of Birla Corporation Ltd. v. CCE, Jaipur, 2003 (54) RLT 510 (CEGAT), the duty was recovered from the assessee by denying the exemption of a notification, but ultimately the assessee was found to be entitled to the benefit of that notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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