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TMI Blog2004 (11) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... he disputed period on the cartons manufactured by them. The department later accepted their contention of attracting nil rate of duty. On the clarification issued by the department, they filed four refund claims for the duty paid under protest. All these refund claims were allowed and credit was given to the appellants in their CENVAT credit account equal to the amount of refund claimed by them. Subsequently on the basis of the Audit objection, show cause notices were issued to them for recovery of the refund erroneously sanctioned to them. The Adjudicating Authority confirmed the demands raised for the amount erroneously refunded and the order of the Original Authority was confirmed by the Commissioner (Appeals). 3. None appeared for app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly interpreted the relevant clause. Clause (d) of provisos to sub-section 2 of Section 11B at the relevant time provides that refund shall, instead of being credited to the fund, be paid to the appellant if the amount relatable to the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person. In the present case, the duty incidence has not been passed on to the buyers. The appellants have paid duty under protest on the directions of the department and recovered the same from the customers as the dispute with the department may take time and recovery of duty afterwards is not possible. However later they issued credit notes to buyers for this amount. Appellants further pleaded that conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. There are no pre-condition attached for issuance of notice under Section 11A for recovery of the amount erroneously refunded. This decision of Bombay High Court was upheld by the Supreme Court as reported in 2004 (163) E.L.T. A56. He pleaded that in view of this and following decision of the Tribunal, it is not necessary to file an appeal against the order but erroneous refund can be recovered under Section 11A of the Central Excise Act : - (1) CCE, Ahmedabad v. Maize Products - 2004 (167) E.L.T. 174. 5. Regarding issue of unjust enrichment, there is no dispute that the appellants had passed on the duty incidence to the customers at the time of clearance of the goods. Therefore, the principle of unjust enrichment will be appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der protest after finalization of assessment has been upheld by Supreme Court in the case of CCE, Mumbai-II v. Allied Photographics India Ltd. - 2004 (166) E.L.T. 3 (S.C.), hence the decisions relied upon by the appellants on this issue are not applicable. Therefore, the principle of unjust enrichment is fully applicable in the present case. By following the decision of the Larger Bench of the Tribunal in the case of Grasim Ind. (Chemical Division) v. CCE, Bhopal (supra) and other decisions relied upon by Revenue, I am fully convinced that once the appellants had passed on the duty incidence to the customers at the time of clearance of goods, they were not entitled for refund. Therefore, the refund amount was correctly ordered to be recover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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