2010 (8) TMI 802

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....order, remanded the case to the adjudicating authority on the following terms - (i) As regards the time bar aspect, the Apex Court has held in the case of National Winder v. CCE., Allahabad - 2003 (154) E.L.T. 350 (S.C.) that if duty is paid by a manufacturer under protest, the limitation of six months will not apply even to a claim for refund by the purchaser. Hence it has been held that the claim for refund is not hit by limitation. (ii) As regards unjust enrichment, the appeal of the Department is allowed by way of remand for examining the issue as to whether the assessees (sic) (appellants) have passed on the incidence of duty to their customers. 4. The decision of the Tribunal that the claim of the dealer, M/s. S.A. Safiullah & Co. ....

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....vision Bench noticed between the earlier judgments of this Court on one hand and paragraph 104 of the judgment of the Constitution Bench of nine-Judges in the case of Mafatlal Industries Ltd. (supra). Hence, by this judgment, we have clarified the position in law". Therefore, the Court has held in the case of Allied Photographic India Ltd. that there is no merit in the argument that the distributor was entitled to claim refund of 'on account' payment made under protest by manufacturer without complying with the provisions of Section 11B of the CEA, 1944, which ratio is squarely applicable to the facts of this case. In this case, the protest of the manufacturers were also vacated by the order of Assistant Commissioner, Thanjavur vide his O....