9911796707
TMI Blog2003 (5) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... hipyard Ltd. (in short 'M/s. HSL') manufactured drilling ship. They were called upon to pay duty of Rs. 7,41,47,939/- under provisional assessment which was later on finalized against them by the adjudicating authority by holding that the benefit of exemption Notification No. 227/87-C.E., dated 24-9-1987 was not available to them. They, however, preferred an appeal against that order before the Commissioner (Appeals), who vide order dated 11-9-1989 reversed the same by holding that the benefit of said notification was available to them. Before passing of that order, they were also required to pay the differential duty of Rs. 2,41,78,684/- by the Asstt. Commissioner, which they paid by debiting in their PLA account on 28-2-1989, but that ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendency of dispute, the entire duty paid, was received by M/s. HSL, from the present appellants at the time of sale of the ship to them. The present appellants then filed two refund claims for the refund of above said duty amounts, on 29-7-1998 and 3-8-1998. They were thereafter issued show cause notice for the rejection of their claims on the ground of limitation as well as of bar of unjust enrichment. In response to that notice, the appellants submitted that since the duty was paid under protest by M/s. HSL, they were entitled to take benefit of that protest and their claims were within time. Regarding the bar of unjust enrichment, they submitted that the principles laid down by the Apex Court in the case of Mafatlal Indus. Ltd. v. Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im for refund was not held to be time-barred by the Commissioner (Appeals) vide order dated 29-12-1995 who while modifying the order-in-original of the Asstt. Commissioner dismissing the claim on the ground of limitation, as well as unjust enrichment, observed that the claim was not time-barred, as the duty was paid under protest, but it was hit by the doctrine of unjust enrichment. That order of the Commissioner (Appeals) was not challenged by M/s. HSL as they admittedly before that, had disposed of the drilling ship to the present appellants and passed on the incidence of duty to them. 8.True, that the present appellants also could take the benefit of the protest lodged by the manufacturer M/s. HSL while paying the duty, for claiming th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of vacation of the protest once lodged by the manufacturer. The letter dated 17-10-1987 (page 47 of the paper book), referred to by the Counsel, could not be treated as a refund application filed by the appellants. In that letter, they only requested that their case regarding the determination of the excise duty on drill ship should be examined and they enclosed certain documents along with that letter. Similarly, in their subsequent letter dated 11-1-1989 no request for refund of the duty paid under protest, was made by them. They rather only requested for exemption from duty. They were required to file the refund claim within six months from the date of firstly vacation of the protest vide order dated 11-9-1989 when the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im arising out of order-in-appeal will not be hit by limitation, is not attracted to the facts of the present case, in the light of the discussion made above. The right to claim refund had arisen to the appellants on account of the purchase of the goods (ship) and as such they were required to lodge their claim in that capacity with the Department and to satisfy the conditions laid down in Section 11B of the Act. 10.This takes us to the second contention of the learned Counsel. The scope and applicability of the unjust enrichment has been dealt with in detail by the Apex Court in the case of Mafatlal Industries. Ltd. v. UOI - 1997 (89) E.L.T. 247 (S.C.). In Para 99 of their judgment, the Apex Court has observed as under - "The doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs". 11.The Apex Court in the above said judgment has not made any distinction for the applicability of doctrine of unjust enrichment in the case of inputs or capital goods. In other words, it has been nowhere observed in that case that this doctrine will not apply in a case where the refund relates to the duty paid on the capital goods. It cannot be accepted that the duty paid by the manufacturer, on capital goods captively consumed does not in any way influence the price of his final product. The ratio of the law laid down in the case of Black Diamond Beverages v. CC, Calcutta - 2002 (148) E.L.T. 1016, and Bihar Alloy Steel v. CC - 1999 (113) E.L.T. 990 (T) = 1998 (25) RLT 150, cited by the learned Counsel, that the doctrine of unjust e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
