TaxTMI 
TaxTMI 
2010 (8) TMI 536
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....e doctrine of "unjust enrichment" is not applicable for the case, since the refund is filed under Rule 173L of Central Excise Rules, 1944 and whether the provisions of refund under Section 11B of the Central Excise Act are not applicable to this case, when there is Apex Court judgment ruling all refunds are subject to the test of unjust enrichment?" Facts in brief : 2. The respondent/assessee is a company manufacturing chemicals falling under Chapter 39 of the Customs Excise Tariff Act, 1944. The assessee has been having running accounts with various buyers and the goods manufactured by the assessee used to be sent to the buyers at various places in the country. The goods have been cleared from the factory of the assessee on payment of central excise duty at its factory gate. 3. For the relevant year 1992 to 1994, some of the goods despatched by the assessee were returned by the consignees, as they did not meet the required specifications. The assessee after the receipt of the said goods back made an application under Rule 173-L of the Central Excise Rules, 1944 (hereinafter called as "the Rules") after informing the jurisdictional Superintendent of Central Excis....
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....being satisfied with the said order passed in the appeals, the Department preferred a further appeal to the Tribunal and the Tribunal in and by its order dated 3-10-1996 in Appeal Nos. 2108 to 2115 of 1996 was pleased to dismiss the same by holding that the respondent/assessee has complied with the procedures contemplated under Rule 173-L of the Rules and therefore it is entitled to get the refund. However while dismissing the appeals the Tribunal was pleased to observe that in as much as the quantum of payment in accordance with Rule 173-L of the Rules has not been determined by the authorities below, the same has to be done by the original authority in accordance with Rule 173-L of the Rules. The Tribunal has further observed that the contention of the Department regarding unjust enrichment cannot be considered having been raised for the first time in the appeals and it is open to the Department to consider the same in accordance with law. With the above said observation, the appeals preferred by the Department were dismissed by the Tribunal. The said orders passed by the Tribunal have become final between the parties. 7. Thereafter, the Department instead of complying wi....
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....er Section 11-A of the Act. 11. It was also observed that the Tribunal on the earlier occasion has dismissed the appeals filed by the Revenue and therefore the Revenue cannot try to overreach or circumvent the decision of the Tribunal by trying to invoke the provisions contained under Section 11-B of the Act. A further finding has been given that the credit note entries made by the respondent/assessee are material evidence and considering the other evidence available on record the assessee has satisfactorily proved that there was no sale and the element of excise duty has not been passed on to the consignees. Hence by way of a detailed order and on a consideration of the materials available on record, the Commissioner (Appeals) allowed the appeal filed by the respondent/assessee. 12. However not satisfied with the said decision, a further appeal was made by the Revenue before the Tribunal. The Tribunal in Appeal No. E/295/2003 dated 10-3-2004 has confirmed the order passed by the Commissioner (Appeals) by holding that inasmuch as the assessee has proved that only Rule 173-L of the Rules is applicable to the goods which were returned after rejection and it has been p....
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....r passed by the Tribunal earlier is binding between the parties and the Revenue has acted contrary to the same. It was further submitted that there is no evidence to the contra that the consignees have borne the burden of excise duty as it is nobody's case. Therefore on the above said submissions, the learned counsel submitted that a decision made and confirmed between the parties as early as on 3-10-1996 by the Tribunal cannot be reviewed in a subsequent proceedings especially when there are sufficient materials in support of the assessee. 15. Heard Shri K. Ravi Anantha Padmanabhan, learned counsel appearing for the Revenue and Shri Nasser Abdullah, learned counsel appearing for the respondent/assessee. 16. From the above said facts, it is manifestly clear that the subject matter of the earlier proceedings between the parties is the granting of refund in accordance with Rule 173-L of the Rules. Both the Commissioner (Appeals) and the Tribunal have held that the respondent/assessee has complied with Rule 173-L of the Rules so as to get the refund for the return of goods from the consignees. Even on the earlier round of litigation, the assessee has placed all the rel....
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....e of consideration of a refund. 20. We also find considerable force in the submissions made by Shri Nasser Abdullah, learned counsel appearing for the respondent/assessee that Section 11-A of the Act as it stood provides for a period of 6 months for the cancellation of refund made already. As found by the Commissioner (Appeals) the show cause notice has been issued nearly after a period of 4 years. It is not the case where the assessee has suppressed any material fact and obtained the refund. He has produced sufficient records while making the application. 21. The only ground on which the request for the assessee for refund was rejected and cancelled was that the goods were not returned immediately and the presumption under Section 12-B of the Act has not been discharged. Therefore, we are of the opinion that the proceedings initiated against the respondent/assessee in so far as the cancellation of refund is concerned is barred by limitation. The Hon'ble Apex Court in National Plywood Industries [2002 (145) E.L.T. A254 (S.C.)] has held that for the recovery of erroneous refund made, the limitation would start from the date of the refund and not from the date from wh....