TaxTMI 
TaxTMI 
2010 (3) TMI 979
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 21-3-2007 was issued to the appellant demanding duty of Rs. 14,06,716/- which was not paid during the periods March 2002 to January 2005 on the ground that the appellant was not eligible to claim the said notification; that the said SCN was adjudicated by the Commissioner, Central Excise, Aurangabad along with the similar SCNs, under OIO No. 20-33/CEX/2008 dated, 27-3-2008; that consequent to the said OIO, the appellant filed refund claim for Rs. 7,59,952/-; that the appellant was issued with a SCN dated 9-7-2009 by the Assistant Commissioner, Central Excise, Satara wherein the appellant was directed to show cause as to why their refund claim of Rs. 7,59,952/- should not be rejected on the ground that the Commissioner, central Excise, Aurangabad appropriated the amount paid by the appellant against the demand confirmed and also refund application was also time barred; that on adjudication, the refund claim was rejected holding that the Commissioner, Central Excise, Aurangabad has appropriated the amount of Rs. 7,59,952/- and further the refund was time-barred; that it was further held that the payment made by the appellant cannot be considered as deposit under Section 35F of Centr....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Shri M.N. Khade, Superintendent, Central Excise, Satara Division appeared from department's side. During the course of PH, the consultant reiterated the submissions made in the appeal memorandum in addition to informing that the issue has already been settled by the Commissioner (Appeals) vide OIA No. PII/PAP/183 to 184/2009, dated 31-8-2009. 4. I have gone through the case records including record of PH, carefully. Perusal of the records reveal that the refund claim had arisen consequent to OIO No. 20-33/CEX/2008 dated, 27-3-2008, passed by the Commissioner, Central Excise, Aurangabad. According to the appellant, the Commissioner has confirmed only the duty amount payable/paid for one year period reckoned from the date of SCN. In other words, the appellant claims that the duty amount which was confirmed beyond one year was not excise duty and accordingly, the same have to be refunded to the appellant. Whereas the adjudicating authority is of the opinion that the adjudicating authority (i.e. Commissioner), while confirming duty relating to one year period, has also appropriated the amount covering the past period also (i.e. beyond one year period) as accepted by the appellant. S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order of the Commissioner, the confirmation was only for the duty falling within the period of one year from the date of issuance of SCN which is legally binding on the appellant. The other sentence i.e. "also the payment of duty made for one year period as also the payment of duties made for past period is accepted and appropriated as payment made in discharge of liabilities", is only the persuasive in nature. In other words, the duty beyond the period of one year, having not confirmed, is not liable to be paid by the appellant, since the same was not confirmed under Section 11A(2) and hence, at most, it may be considered as persuasive in character. Since the appellant has not accepted the persuasive character, it can very well be said that the appellant is not legally liable to pay any duty which is covered beyond the period of one year. 5. The next issue to be seen is that whether the refunds are hit by unjust enrichment or not. The adjudicating authority has held that the production of CA's certificate itself is not sufficient to prove that the appellant has not passed on duty burden to the customers/buyers; that the lower authority further held that the appellant has not prod....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Bhagwati, J. observed as under in that case :- "The constitutional philosophy of a democratic socialist republic requires the Government to undertake a multitude of socio-economic operations and the Government, having regard to the practical advantage of functioning through the legal device of a corporation embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from its basis obligation to respect the fundamental rights and not to override them. The mandate of a corporation may be adopted in order to free the Government from the inevitable constrains of red tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights. Otherwise, it would be the easiest thing for the Government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV and Radio, Rail, Road and Telephones - in short every economic activity - and thereby cheat the people of India out of the Fundamental Rights guaranteed to them". 5.1 In addition to the a....