ASSISTANT ENGINEER (CIVIL), PCC Vs. CCE

JUDGEMENT

(1.) None is present on behalf of the appellant. On the last date of hearing. Shri Anil Vyas, Additional S.E. appeared on behalf of the appellant and the appeal was adjourned for today. But today neither he nor the appellant himself has put in appearance. No request for adjournment has been received. Therefore, we proceed to decide the appeal after hearing the learned SDR.

(2.) The controversy in this appeal relates to the refund claim of duty lodged by the appellant. The ld. Commr. (Appeals) has dismissed the claim on two grounds. Firstly, it is time barred. Secondly, it is hit by principle of unjust enrichment.

(3.) We have gone through the record and in our view, the order passed by the Commissioner (Appeals) is perfectly valid. We find that the duty was paid voluntarily by the appellant. The excess payment of duty on his part occurred on account of reduction of excise duty from 18% to 16% ad valorem from 1.3.99 which came into force on presentation of the Annual Budget. The appellant however continued to pay duty at the rate of 18%. There is nothing on the record to suggest if the duty was paid under protest. Therefore, from the date of the payment, the refund claim was not filed within time prescribed under Section 11B(1) of the Act. The plea of the appellants that it was not the duty but money which was paid by him in excess and as such, Section 11B did not apply to their case, in our view, is wholly misconceived. It was only the excess duty which was paid by him and not the simple money in any form, to the Revenue. Therefore, the provisions of Section 11B did apply to the case.