TaxTMI 
TaxTMI 
2008 (4) TMI 69
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....iods during, which Rules 233B of the Central Excise Rules, 1944 was in force. Some of these claims were rejected as time-barred while other claims were dismissed on the ground of unjust enrichment. Even in those cases where the refund claims were dismissed as time-barred, the bar of unjust enrichment was also applied. In all cases, the decision of the original authority was sustained by the first appellate authority. Essential particulars of these cases are discernible from a synopsis filed by the learned Consultant for the appellants and the same is reproduced below :- S. No. Appeal No. & Name Refund claim period Refund claim (Rs.) Points in dispute 1. E/238/01 - TNEB, Udumalpet EDC O/A 58/2000 BE(GVN) Dated 31-8-20....
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....03 1991-92 8,51,488/- The O/O sanctioned Refund claim, but transferred and credited to consumer welfare fund; Presumed that duty incidence has not been passed on — rejected on unjust enrichment. 7. E/1324/04 - TNEB Udumalpet EDC O/A251 /2004-CE Dated 5-8-2004 O/O 04/2004(AC) (Pollachi) Dated 29-1-2004 Dec' 92 to Feb' 95 6,53,726/- The O/O sanctioned Refund claim, but transferred and credited to consumer welfare fund; Presumed that duty incidence has not been passed on — rejected on unjust enrichment. 8. E/180/05 - TNEB Kancheepuram EDC O/A 114/04 Dated 17-11- 2004 O/O 26/2004 Dated 2-8-2004 1999-2000 87,300/- The DC, Chennai V Division, vide impugned O/O sanctioned the refund of Rs. 87,300/- but ad....
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....d Consultant that the words "UNDER PROTEST" stamped on the TR-6 challan satisfied this essential requirement. Reliance has also been placed on the Apex Court's judgment in Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.)]. It is pointed out that, in para 85 of the said judgment, their Lordships ruled that it was not necessary to particularise the grounds of protest under Rule 233B. The argument is that an endorsement as above on the relevant duty-paying document would substantially satisfy the requirement of Rule 233B. On this point, we have heard learned JDR also. He also would rely on para 85 of the judgment in Mafatlal Industries (supra) and would argue that any person paying duty under protest was required to foll....
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....tified by the Chartered Accountant and that this amount was never factored into the costs of the aforesaid activities recovered from the consumers. It is submitted by the learned Consultant that these aspects have been considered in detail by this Bench in Appeal No. E/228/2004 [Superintending Engineer, TNEB, Nagapatinam v. Commissioner of Central Excise, Trichy] and the question of applicability of the doctrine of unjust enrichment to TNEB's refund claim was held in favour of the Board vide Final Order No. 207/2008, dated 10-3-2008. Learned Consultant has placed on record a copy of the said final order. It is urged that the original authorities be directed to re-examine the cases in the light of the decision of this Bench. In this regard a....
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.... another Division of the same Commissionerate. This case of the Revenue has been reiterated by the learned JDR. It is contested by the learned Consultant by submitting that the assessees are different in the two Divisions of the Commissionerate, though both are units of TNEB and, therefore, adjustment as above is not permissible under Section 11 of the Act. We have considered these submissions also. The controversy compels us to have a re-look at Section 11 of the Central Excise Act, which is reproduced (without the proviso) below :- "SECTION 11. Recovery of sums due to Government. — In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunde....