BHILWARA PROCESSORS Vs. C.C.E.

JUDGEMENT

(1.) The authorities below have rejected the claim of the appellant herein for refund of Rs. 1,38,70,221/ - on the ground that the claim is hit by the bar of unjust enrichment enshrined in Section 11B of the Central Excise Act, 1944.

(2.) THE claim for refund was initially rejected by the Asstt. Collector by his order dt. 29.5.90 on the ground of time bar as well as on merits. This order was appealed against before Collector(Appeals) who vide order dt. 25.10.91 upheld the rejection of the claim. The matter was carried further in appeal to the Tribunal which vide order No. 223/99 -A dt.4.3.99 set aside the rejection on the ground of time bar but remanded the issue for reconsideration with respect to unjust enrichment after ascertaining as to whether duty liability was passed on by the appellants to their buyers. On remand, fresh order was passed by the Asstt. Commissioner on 11.1.01 holding that the duty was recovered by the appellants from their customers. This order was upheld by the Commissioner(Appeals) vide impugned order dt. 30.9.03, hence this appeal.

(3.) THE first contention of the appellant is that the bar of unjust enrichment is not attracted in the present case for the reason that duty was paid by the appellants under protest. However, this contention required to be rejected in the light of the judgment of the Apex Court in the case of CCE, Mumbai v. Allied Photographics India Ltd.