CCE Vs. CROMPTON GREAVES LTD.

JUDGEMENT

(1.) THE Revenue has preferred the present appeal being aggrieved by the order in appeal dated 13.9.1990 under which the Collector (Appeals) had allowed the claim of refund of duty to M/s. Crompton Greaves Ltd., Respondents.

(2.) BRIEFLY stated the facts are that the Respondents manufacture Electric Motor and were availing proforma credit of duty paid on inputs, namely electrical stamping, under Notification No. 95/83. The Assistant Collector under order in original dated 16.9.1985, confirmed a demand amounting to Rs. 6,72,171.72 paise holding that the proforma credit of duty paid on inputs was not available to them since the final product was cleared at nil rate of duty under Notification No. 272/79 dt. 18.10.1979. The Collector (Appeals) vide order dt. 1.3.1986 directed the Respondents to deposit the amount demanded by the Assistant Collector as a pre -condition under Section 35F of the Central Excise Act. The Respondents deposited the said amount in R.G 23 Part II and P.L.A. on 31.3.1986. Subsequently the Collector (Appeals), under order dated 17.1.1989, allowed the appeal filed by the Respondents holding that demand was hit by time limit. The claim for refund of amount deposited by them was rejected by the Assistant Collector, under adjudication order dated 31.1.1990 holding that procedure of payment under protest as specified in Rule 233B of the Central Excise Rules was not followed by the Respondents and as the amount had been recovered from the Customers, the refund was hit by the Doctrine of Unjust Enrichment in view of the judgment of the Bombay High Court in the case of Roplas (I) Ltd. v. UOI 1988 (28) ELT 27 : 1989 (22) ECR 449 (Bom). On appeal, Collector (Appeals) vide impugned order dated 13.9.1990, set aside the adjudication order and allowed the appeal with consequential relief holding that question of applicability of Rule 233B did not arise in such cases and that theory of unjust enrichment could not be applied in the departmental proceedings as the departmental authorities were bound by the provisions of the statute and they could not go beyond the Act and Rules.

(3.) MRS . Dolly Saxena, the Ld. J.C.D.R., submitted that the judicial proprietary (sic) demanded that Assistant Collector should follow the judgment of the Bombay High Court in Roplas' case while dealing with a claim for refund. As the Respondents had recovered the amount of duty from the Customers, any refund of the same to them would amount to undue enrichment. Moreover, now Section 11B of the Central Excise Act also provides that amount of refund will not be given to the claimant if he had passed on the incidence of duty to any other person. By virtue of proviso to Section 11B of the Central Excise Act, these provisions are applicable also to the refund claim which has been made before the commencement of Amendment Act, 1991. She also reiterated the grounds of appeal as contained in the memorandum of appeal and emphasized that payment of amount under protest was not mentioned in the PLA and the relevant R.T. 12 Return and as such the claim was hit by time limit specified in Section 11B of the Act.