SUDHIR PAPERS LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THIS appeal of the assessee is against rejection of their refund claims for the period from 1 -11 -2000 to 31 -12 -2001. No claim was rejected on merits. The refund claim for the period 1 -11 -2000 to 31 -3 -2001 was rejected as time -barred and the claim for the subsequent period was rejected on the ground of unjust enrichment. The claim for the first period was originally filed on 29 -11 -2001 but the same was not accompanied by necessary documents. When this defect was pointed out by the departmental authorities, the appellants filed a fresh application, which was beyond the period of limitation prescribed under Section 11B of the Central Excise Act and hence rejected as time -barred. Insofar as the second period is concerned, the refund claim was within the prescribed period. The lower authorities found that the duty burden had been passed on by the assessee to their buyers at the time of clearance of the goods. They held that the subsequent issuance of credit notes to the buyers did not have the effect of removing the bar of unjust enrichment. In this connection, the lower appellate authority relied on the Tribunal's Larger Bench decision in S. Kumar's case : 2003 (153) E.L.T. 217 (Tri. - LB). The present appeal is directed against the appellate Commissioner's order.

(2.) THE following are the grounds of this appeal:

(3.) THE refund application for the period November 2000 to March 2001 was originally filed on 29 -11 -2001. It appears from the records that this application was withdrawn subsequently on 27 -2 -2002 by way of a letter addressed to the Deputy Commissioner of Central Excise. After such withdrawal, no refund claim for the said period was pending with the Department. A fresh claim was filed only on 7 -3 -2002 and this was clearly beyond the period of limitation prescribed under Section 11B of the Act. This claim cannot be treated as continuation of the original claim inasmuch as the latter was withdrawn. Had the original application been pending with the Department on the date of filing of fresh claim, the position would have been different. Interestingly, none of the grounds of this appeal touches this aspect. The decision of the lower appellate authority is sustainable on this score also.