COMMISSIONER OF CENTRAL EXCISE Vs. BIOCHEM PHARMACEUTICALS

JUDGEMENT

(1.) HEARD both sides.

(2.) THE issue relates to refund of duty. It is seen from the impugned order that the Commissioner (Appeals) has set aside the order passed by (the adjudicating authority and ordered refund of Rs. 2,76,067/ - on the ground that the appellants have paid the duty by mistake to the department. Whereas the duty was in -fact payable to the State Excise Department and the same has already been paid to the State Excise Department by the assessee respondents. While allowing the refund the Commissioner (Appeals) has noted that the adjudicating authority has clearly given his findings stating that the disputed goods are outside the purview of Central Excise Tariff Act, 1985. Therefore, no duty is leviable in terms of the Section 3 of Central Excise Act, 1944. While allowing refund the adjudicating authority has ordered transferring of the same to the Consumer Welfare Fund on the ground of unjust enrichment because the assessee appellant has already recovered the duty from their customers. The contention of the Id. Counsel for the assessee respondents is that the principles of unjust enrichment are not applicable in this case because the duty cannot be collected by the Department under the authority of law. In this regard the Id. Counsel for the appellants relied on the decision in the case of Dabur India Ltd. v. State of Uttar Pradesh .

(3.) AFTER hearing both sides, perusal of the records and the case law relied on by the Id. Counsel for the assessee respondents. I am in full agreement with the Commissioner (Appeals) that since the department was not legally entitled to recover the duty from the assessee respondents, the question of principles of unjust enrichment being attracted in this case does not arise. Therefore, that being the position it was not competent for the adjudicating authority to have ordered for deposit of the refund in the Consumer Welfare Fund.