2010 (1) TMI 408

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....case are that the respondents are engaged in the manufacture of excisable goods namely parts and accessories of Motor Vehicles Wheel Rims, Bicycle/Cycle Rims and seat cushion. The respondents filed a refund claim under Section 11AB of the Central Excise Act, 1944. Since the respondents being SSI unit were filing classification declaration from time to time, claiming therein benefit of partial exemption of Notification No. 38/97, dated 27-6-97 and 9/98 dated 2-6-98, they have paid Central Excise duty on their excisable goods. The divisional preventive staff, at the time of their visit to assessee unit on 28-9-2000 pointed out the above mentioned lapses, discrepancies and irregularities as well as quantified 'short payment' and levy of Centra....

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....n one year of such visit but no demand notice has been issued, even within five years, further due duty in the instant case was also not determined, therefore, the appellant's case for refund is covered under relevant provisions of law. Besides, it is seen that the refund is not hit by the doctrine of undue enrichment, because the appellant has produced certificate from Chartered Accountant. Further, the buyers of the goods have also submitted certificate to the effect that they have not availed any Cenvat/Modvat credit for the differential amount paid by the appellant. Therefore, the amount of duty paid by the appellant "under protest" in the absence of any lawful demand confirmation deserves to be returned to the appellant. Therefore, the....

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....to the buyers and doctrine of unjust enrichment is not applicable. He submitted that the respondents are entitled to claim the refund and the impugned order be upheld. 5. Heard both sides. 6. After careful consideration of the submissions made by both the sides, I find that the learned DR has relied on Sangam Processors (supra) and Ballarpur Industries Ltd. (supra) and in both the cases, incidence of duty was passed on by the assessee to the consumers at the time of clearance of the goods and thereafter the credit notes were issued in respect of the duty incidence by the assessee to the customers and in the present case, the respondents have paid the duty under protest after more than one year of the clearance of the goods and subsequ....