SRI KALISWARI FIREWORKS Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE original authority rejected appellants' refund claim (for an amount of duty paid ol 19 -9 -1987) on the ground that there was no exemption notification on that date granting exemption to the subject goods from payment of duty. The first appellate authority held the amount of duty paid to be refundable in principle. However, it ordered the amount to be credited to the Consumer Welfare Fund, after finding that the claimant had not shown that the duty burden had not been passed on to their buyers. In other words, the refund claim stands rejected as barred by unjust enrichment.

(2.) LD . Counsel for the appellants submits that the amount paid to the exchequer in connection with the clearance of the goods on 19 -9 -1987 was not to be considered as 'duty' inasmuch as, when the goods were seized by the department (2 -9 -1987), they were exempt from payment of duty under Notification No. 167/86 -CE, dated 1 -3 -1986. Had the goods not been seized and detained, the appellants would have cleared the same in terms of the exemption notification. Ld. SDR has countered this argument, by submitting that, on the date of clearance there was no exemption from payment of duty on the subject goods and that, in all statutory records, the assessee represented the amount to be duty of excise. In this connection, the relevant gate passes and a 'letter of protest' issued by the assessee to the department have been referred to. We find substance in this submission of Id. SDR. The amount was paid as duty of excise. It was so represented in the relevant gate passes. The 'letter of protest' issued by the assessee under Rule 233B of the Central Excise Rules also treated the amount as duty of excise. Ultimately, the claim for refund of the amount was also filed under provisions (Section 11B od the Central Excise Act and Rule 173S of vhg Central Excise Rules, 1944) pertaining to Aentral Excise Duty. Therefore, there is no room for denial of the fact that what was paid by the assessee was duty of excise. Ld. Counsel's argument for excluding the applicability of Section 11B is, tjerefore, rejected.

(3.) NOTHING survives now inasmuch as it is an admitted fact that the duty paid by the assessee was also borne by their buyers through the relevant gate passes. The refund claim is, therefore, hit by the bar of unjust enrichment. The Order of the Commissioner (Appeals) crediting the amount to Consumer Welfare Fund is in order. The appeal gets dismissed.