(1.) The appellant has challenged the order of the Commissioner (Appeals) made on 29.03.2005 upholding the order -in -original to the extent that the refund of Rs. 5,22,000/ -, which was sanctioned against the refund claim dated 19.06.2003, was ordered to be credited to the Consumer Welfare Fund.
(2.) IT appears that, on the basis of the decision of the Hon'ble Supreme Court in CCE, Jaipur v. Sangam Processors (Bhilwara) Ltd. , holding that the length of galleries was not to be included in the chambers for the purpose of capacity determination, the initial provisional capacity determination @ 1.5 lac per chamber per month came to be accordingly finalized at the same rate. Since, in the meanwhile, the appellant had paid excess duty, as set out in the order -in -original on the galleries attached to the chamber installed in the factory, a refund claim was filed under Section 11B of the Act to get the amount back. The appellant had claimed refund of Rs. 5,22,000/ -, being the duty paid on galleries during the months from June, 1999 to March, 2000 (except September, 1999). A show cause notice was thereafter issued on the appellant as to why the claim should not be rejected since the original documents evidencing the payment of duty were not submitted and the appellant had recovered the duty paid from the customers and, therefore, it was not liable to be refunded to the appellant on the ground of unjust enrichment.
(3.) THE Assistant Commissioner, entertaining the application for refund, came to a finding that, the refund claim was required to be sanctioned since the duty on galleries had been shown debited by them under protest. However, on the aspect of unjust enrichment, it was held that the appellant had failed to establish that the duty incidence in respect of the duty paid on galleries was not passed on to the customers. Accordingly, while sanctioning the refund, the amount was ordered to be credited to refund.