AI Drafter 
TaxTMI 
TaxTMI 
2018 (4) TMI 157
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...., on the disputed classification of HDPE Tapes, in favour of the appellant, they became eligible to refund of the duty paid on such HDPE Tapes, during the period 22.04.1986 to 31.03.1992. Consequently, they filed refund claim in August/September 1994. The refund claim though sanctioned, but, was transferred to Consumer Welfare Fund, on the ground of unjust enrichment. On appeal against the said order, the Ld. Commissioner (Appeals) vide order dated 05.04.1999, set-aside the order of the Adjudicating Authority and observed that the principle of unjust enrichment would not be applicable to goods captively consumed and allowed the refund claim. Subsequently, the refund claim of Rs. 70,80,080/- was sanctioned to the appellant on 27.10.1999. Agg....
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.... is admissible after expiry of 3 months from the date of filing the claim i.e.from 26.05.1995. The SCN issued for recovery of the interest sanctioned was confirmed vide order dated 31.12.2009. Aggrieved by the said order, the appellant filed appeal before the Ld. Commissioner (Appeals), who inturn, upheld the order of the Adjudicating Authority. Hence, the present appeal. 4. Ld. Advocate Shri Amal Paresh Dave for the appellant submits that two parallel proceedings for recovery of the interest amount by order dated 30.04.2008 had been initiated; one by way of filing appeal under Section 35A of CEA, 1994, and the second by issuing SCN for recovery of the erroneously refunded interest amount on 03.03.2009. It is his contention that their ap....
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....nt has not produced any evidences to establish the fact that the burden of duty claimed as refund has not been passed on to others. They simply argued that the principle of unjust enrichment would not be applicable for goods captively consumed, and the Ld. Commissioner (Appeals) in its order dated 05.04.1999 accepting the said contention following the judgement of the Hon'ble Bombay High Court in the case of Solar Pesticides Pvt. Ltd. Vs. UOI 1992 (57) ELT 201 (Bom.) allowed their appeal. On an appeal filed by the Revenue against the order of the Ld. Commissioner (Appeals), the case was remanded by the Tribunal to the Adjudicating Authority on 11.02.2002 to examine the issue of unjust enrichment after affording an opportunity to the appella....
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....r the period of the refund amount transferred to Consumer Welfare Fund. Also, the Ld. AR for the Revenue has referred to the judgement of Hon'ble Bombay High Court in the case of Kadamba Transport Corporation Ltd. Vs. Commissioner of Central Excise, Goa 2017-TIOL-2197-HC-MUM-CX. 7. Heard both sides and perused the records. It is not in dispute that the refund amount was sanctioned to the appellant on 30.04.1996 by the Adjudicating Authority, but, transferred to the Consumer Welfare Fund, as the appellant failed to establish that the burden of duty has not been passed on to others. The said order was reversed on appeal and the amount was paid to the appellant on 27.10.1999. Later, the appellant claimed interest on 03.11.1999 for the perio....
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....g Authority in the year 2006, by adducing evidences in this regard. Thus, the ratio laid down by the Hon'ble Gujarat High Court in Purnima Advertising Agency Pvt. Ltd s case (supra) cannot be made applicable to the facts of the present case. From the facts on record, I do not find force in the contention of the Revenue inasmuch as the Ld. Commissioner (Appeals) in its order dated 05.04.1999, following the judgement of the Hon'ble Bombay High Court in Solar Pesticides Pvt. Ltd s case (supra) observed that principle of unjust enrichment is not applicable to the goods captively consumed. Needless to emphasise that was the Rule of Law prevailed at the relevant point of time in view of the principle settled by the Hon'ble Bombay High Court in So....