2016 (11) TMI 481

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.... "1. Whether Tribunal has correctly applied provisions contained in proviso (c) to sub section (2) of Section 11B of Central Excise Act, 1944, which afford protection to refunds from the bar of unjust enrichment, to a case of refund of duty paid on goods which have been captively consumed, when the said refund does not correspond to credit of duty paid on excisable goods used as inputs? 2. Whether the Tribunal has correctly applied provisions contained in proviso (c) to sub section  (2) of Section 11B of Central Excise Act, 1944, which afford protection to refunds from the bar of unjust enrichment, to a case of refund of duty paid on goods which have been captively consumed, when the said refund has not arisen in accordance with th....

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....f Central Excise (Appeals), Allahabad (hereinafter referred to as "CCE(A)") who rejected the same vide order dated 19.11.1990. Assessee then preferred further appeal before Customs, Central Excise & Service Tax Appellate Tribunal (hereinafter referred to as "Tribunal") who by order dated 21.9.1992 allowed appeal and set aside CCE(A)'s order dated 19.11.1990 and granted consequential relief to Assessee. 7. Based on the order of Tribunal, dated 21.9.1992, Assessee submitted an application dated 15.3.1993 before Assistant Commissioner claiming refund of Central Excise Duty of Rs. 1,85,84,873/- paid by him on Tapes during 1.3.1986 to 11.2.1990 on the ground that Tribunal has held these tapes classifiable under Chapter 39 and since these ta....

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....oner, Assessee preferred appeal before CCE(A) who allowed the same vide order dated 16.11.1998, set aside order 30.6.1998 and directed for refund of Rs. 1,16,28,268/-. CCE(A) determined amount of refund after adjusting duty, to Rs. 3,71,57,046/- on fabrics which became payable by virtue of settlement of classification dispute and allowing Modvat credit of duty on inputs, to Rs. 3,02,00,441/- and adjustment of duty of Rs. 1,85,84,873/- paid from PLA at the tape stage. According to CCE(A), admissible refund was calculated as [Rs.3,02,00,441+Rs.1,85,84,873 - Rs. 3,71,57,046 = 1,16,28,268/-]. 10. Revenue felt aggrieved by this order dated 16.11.1998, hence preferred appeal before Tribunal but failed since appeal was rejected by Tribunal vide o....

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.... and held that there was no question of rejection of refund on the ground of " undue enrichment" since it was not sustainable, as duty was paid on intermediate products and question of passing on incidence of duty to customers does not arise. This order of CCE(A) attained finality since Revenue did not challenge this order in appeal. Once CCE(A) held that there was no question of "unjust enrichment", Assistant Commissioner had no jurisdiction to reiterate and follow his overruled view of "unjust enrichment" which was already negatived by CCE(A). The approach of Assistant Commissioner in reiterating the issue of "unjust enrichment" despite having been answered by CCE(A) otherwise, vide order dated 31.1.1996 which order had attained finality,....