EXECUTIVE ENGINEER, CENTRAL Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This appeal has been filed by the appellants against the impugned Order -in -Appeal vide which the Commissioner (Appeals) has affirmed the Order -in -Original of the Deputy Commissioner who rejected the refund claim of the appellants. The facts are not much in dispute. The appellants are engaged in the generation, transmission and distribution of electrical energy. They have their divisions an sub -stations for that purpose in different parts of the State (Chattisgarh). As their activities of revetting, punching, bolting, cutting, drilling, etc., were considered as amounting to manufacture of the goods, they were called upon by the Department to pay the duty and also to take the Licence. They accordingly acted and paid the duty but denied that their activity amounted to manufacture of the goods. Thereafter, they lodged a claim for refund of the duty paid by them during 1.4.75 to 31.3.88 mainly on the ground that the CEGAT in the case of Arum Industries, 1986 (9) ECC 35 (T): 1986 (25) ELT 580 had taken the view that the processes involved in the fabrication activities of that company which were similar to that of the appellants did not amount to manufacture. Their claim was rejected on the ground of limitation by the Assistant Commissioner and that order was affirmed by the Commissioner (Appeals) as well as by the Tribunal. But the appellants approached the Apex Court and that Court set aside the order of the Tribunal and held that the payment of duty by the appellants was under protest. The Apex Court directed the Assistant Commissioner to examine the refund claim of the appellants on merits.

(2.) After the remand, the Deputy Commissioner through order dated 23.8.2000 dismissed the refund claim of the appellants by invoking the doctrine of unjust enrichment, besides holding that the activity amounted to manufacture. That order had been affirmed by the Commissioner (Appeals) through the impugned order.

(3.) The learned Counsel has contended that since the duty was paid under protest, the doctrine of unjust enrichment did not apply to the case of the appellants. As such, the refund claim could not be legally rejected. In support of his contention, he has placed reliance on the ratio of law laid down in Sinkhai Synthetics and Chemicals P. Ltd. v. CCE, Aurangabad, 2002 (83) ELT 5 (SC); 2002 (143) ELT 17 (SC) and the Tribunal's judgment in Tecil Chemicals and Hydro Power Ltd. v. CCE, Cochin, 2003 (55) RLT 643. On the other hand, the learned JDR has reiterated the correctness of the impugned order.