LAWS(CE)-2003-5-180

CONTEMPERORY PACKAGING Vs. C.C.E.

Decided On May 29, 2003
Contemperory Packaging Appellant
V/S
C.C.E. Respondents

JUDGEMENT

(1.) This appeal has been directed against the impugned order -in -appeal dated 11 -12 -2001 vide which the Commissioner (Appeals) has affirmed the order -in -original of the Deputy Commissioner who rejected the refund claim of the appellants being hit by the doctrine of unjust enrichment.

(2.) The sole issue involved in the present appeal is as to whether the refund claim of the appellants falls within the ambit of doctrine of unjust enichment 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 and Chemicals Pvt. Ltd. v. CCE, Aurangabad, 2002 (143) E.L.T. 17 (S.C.); Hindustan Metal Pressing Works v. CCE, Pune, 2003 (55) RLT 259 (SC); and Tribunal's judgments in Tecil Chemicals and Hydro Power Ltd. v. CCE, Cochin, 2003 (151) E.L.T. 136 (CEGAT); and Birla Corpn. Ltd. and Anr. v. CCE, Jaipur, 2003 (54) RLT 510 (CEGAT), wherein it has been observed that the refund of the duty paid under protest will not be governed by the provisions of Section 11B.