STATE OF HARYANA Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE State of Haryana has filed the instant appeal under Section 35G of the Central Excise Act, 1944 (for brevity, 'the Act') with a prayer for quashing order dated 28 -5 -2009 (A -9), 2009 (247) E.L.T. 632 (Tri. - Del.) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal') dismissing its appeal and declining its claim for refund.

(2.) IT is pertinent to mention that the appellant had purchased plastic polythene covers from M/s. Shivalik Poly Plast Products Limited, Parwanoo in the year 1986. There was dispute about the exigibility of the polythene covers which was settled in favour of the seller -assessee. The duty demanded and penalty imposed were recovered by the respondent by adjusting from the refund sanctioned to the seller of the appellant. The Tribunal granted refund in respect of the penalty recovered from them but declined to order grant of refund of duty recovered from them by applying the principle of unjust enrichment holding that the burden of duty stood passed on to the purchaser. The appellant as a purchaser filed claim for refund in 1996 which was rejected by the Original Authority on 30 -12 -2002. On further appeal, the Commissioner (Appeals) also upheld the order of the Original Authority.

(3.) HAVING heard learned State Counsel we do not find any justification to interfere in the order passed by the Tribunal. The purchaser -appellant in any case acquired the right to seek refund only on 20 -9 -1991 when application for refund was filed. Apart from the fact that there was delay in filing the application, it is doubtful whether the purchaser like the appellant could have claimed refund in respect of the transaction which has taken place in 1986. The appeal is wholly misconceived and does not lead to framing of any question of law warranting its admission. Accordingly the appeal fails and the same is dismissed.