2006 (1) TMI 37

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....ave not committed an error of law in holding that the claim for refund is not barred by limitation since the duty was paid under protest when the respondent has not followed the procedures contemplated under Rule 233 B of the erstwhile Central Excise Rules, 1944. 2. Whether the Commissioner (Appeals) and the Tribunal have not committed an error of law in holding that the respondent is entitled for refund since there was no unjust enrichment merely relying upon the certificate issued by the Chartered Accountant and the Profit and Loss Account submitted by the respondent?" 2. The facts leading to the above Appeal are as under: (i) The respondent assessee was engaged in the manufacture of components for Drip/Sprinkler Irrigation Syste....

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....allowed at Modvat Credit admissible to them. (ii) The assessee filed an appeal against the Commissioner's order before the CEGAT, Chennai contending that the items in question manufactured were also classifiable under 84.24 and they had rightly granted exemption under the said notification and the said items were not Tubes and Pipes and other plastics for classification under Heading 3917.00. The Tribunal in its Order No. 1262/2K, dated 5-9-2000, [2001 (130) E.L.T. 541(Tri. - Chennai)] allowed the appeal filed by the assessee. Consequent to the said order, the assessee filed a refund claim on 2-3-2001 for Rs. 24.47,444/- by way of cash and Rs. 71,70,360/- by way of credit in RG 23A Part II Account on the ground that the CEGAT order held ....

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....tral Excise Act, 1944 which is pending before the Commissioner (Appeals), Coimbatore. Thus the question of unjust enrichment is yet to be decided by the Commissioner (Appeals), Coimbatore in the Appeal filed by the Department. (iv) Meanwhile, aggrieved by the rejection of refund order in Order No. 207/2003 dated 21-8-2003 passed by the Assistant Commissioner of Central Excise, Coimbatore II Division, the respondent filed an appeal before the Commissioner (Appeals), Trichy, who allowed the respondent's appeal vide Order No. 88/2004, dated 31-3-2004 by holding that the respondent is eligible for refund of duty paid as it was under protest. He further held that the respondent had discharged the burden of proving that the incidence of duty i....