Appellant entitled to duty refund under Notification No. 108/95-CE. Refund claim rejection set aside.

The Tribunal held that the appellant is entitled to a refund of duty paid on bitumen under Notification No. 108/95-CE as they bore the duty. The rejection of the refund claim was set aside, and the appeal was allowed with consequential relief. The Tribunal emphasized that grounds for rejection not mentioned in the show cause notice cannot be considered by the appellate authority.

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Issues Involved:
1. Provision of refund under Notification No. 108/95-CE dated 28.08.1995.
2. Applicability of Notification No. 108/95 to the buyer.
3. Jurisdiction of the adjudicating authority.
4. Admissibility of refund claim under Section 11B of the Central Excise Act, 1944.
5. Time-bar of the refund claim.
6. Unjust enrichment.

Issue-wise Detailed Analysis:

1. Provision of refund under Notification No. 108/95-CE dated 28.08.1995:
The notification grants complete exemption from payment of duty but does not explicitly provide for the payment of duty and subsequent grant of refund. The Tribunal noted that while the supplier of bitumen was not required to pay duty under the said notification, the supplier did so, and the appellant bore this duty. It was held that the appellant, having suffered the duty, is entitled to file a refund claim under the proviso to Section 11(B)(2)(e) of the Central Excise Act, as supported by the decision in Mafatlal Industries Limited.

2. Applicability of Notification No. 108/95 to the buyer:
The Tribunal found that the notification exempts the goods from duty, and this exemption extends to the buyer as well. The appellant was burdened with duty for a product that was not dutiable, thus entitling them to a refund. The Tribunal emphasized that the notification does not prescribe the manner of refund, but this does not negate the appellant's right to claim it.

3. Jurisdiction of the adjudicating authority:
The refund claim was initially rejected on the ground that the appellant did not file it with the proper jurisdictional officer. The Tribunal held that if the adjudicating authority believed it lacked jurisdiction, it should have transferred the claim to the competent authority rather than rejecting it. The Tribunal also noted that the adjudicating authority entertained the refund claim on merits, thus implicitly accepting its jurisdiction.

4. Admissibility of refund claim under Section 11B of the Central Excise Act, 1944:
The Tribunal reiterated that the refund claim is admissible under the proviso to Section 11B(2)(e) as the appellant bore the duty. The Tribunal referenced the case of Mafatlal Industries Limited, which supports the admissibility of the refund claim in such circumstances.

5. Time-bar of the refund claim:
The refund claim was initially filed with the DGFT, which rejected it on 10.03.2013. The appellant then filed the refund claim with the Central Excise authorities on 26.08.2013. The Tribunal held that the limitation period started from the date of the DGFT's rejection, making the claim timely. The Tribunal also noted that the duty paid by the appellant was not legally due, and thus, the amount paid was not duty in the legal sense but an amount paid under a bona fide mistake, which should be refunded.

6. Unjust enrichment:
The Tribunal found that the bar of unjust enrichment does not apply as the appellant bore the duty and did not recover it from the service recipient. The execution of the work was exempt from payment of duty/service tax, thus satisfying the condition against unjust enrichment.

Conclusion:
The Tribunal concluded that the appellant is entitled to a refund of the duty paid on bitumen under Notification No. 108/95-CE, as the appellant bore the duty. The impugned order rejecting the refund claim was set aside, and the appeal was allowed with consequential relief. The Tribunal emphasized that the grounds for rejection not stated in the show cause notice cannot be entertained by the appellate authority.

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