TaxTMI 
TaxTMI 
2025 (7) TMI 334
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....d 3 refund claims for the duty paid on UF/PF resin under tariff item 15 A (1) of the earstwhile tariff, in respect of such goods captively consumed during the period 01.10.1977 to 15.09.1982. The total claim of refund was for an amount of Rs.51,33,004.71.The said refund claims were rejected by the authority on 20.08.1983. The tortuous appellate history of the matter thus runs therefrom and has reportedly traversed up and down on multiple occasions, right upto the Hon'ble High Court, Guwahati over the years. 2. A writ Appeal No. 211 of 1996 came to be disposed with the Hon'ble High Court holding inter alia that the issue in dispute regarding the applicability of principle of unjust enrichment concerning UF/PF resin solution prepared and used captively by the appellant had not been gone into and it would be open for the appellant to make such application which was required to be examined as per law. In the meanwhile, the original writ bearing Civil Rule No. 3499 of 1991 which was filed by the appellant before the Hon'ble High Court, Guwahati, pursuant to the Order in Appeal dated 17.9.83 passed by the Commissioner (Appeal) directing drawal of fresh samples, by the CRCL, was dispos....
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.... 30.07.2006 passed by the Ld. Commissioner of Central Excise, Dibrugarh. 4. To recap for sake of gravity and ease of understanding, it be stated that the Show Cause Notice dated 07.01.2005 culminated into an adjudication order dated 31.07.2006. The appellant has in the matter contended that the said Show Cause Notice was hit by principles of res judicata in as much as order dated 20.08.2003 was appealed by the department and therefore any further action on a void act would in itself be voidable. 5. In addition to the above, the appellant has contended that even otherwise the refund was sanctioned vide order dated 20.08.2003, while the impugned Show Cause Notice was issued on 07.01.2005 and was therefore hit by limitation (one year being the timeline to issue notice, at the relevant point in time). In order to buttress their claim, the appellant also submits that they had filed their classification list on 27.02.1982 and therefore it would not be correct for the department to invoke extended period of limitation, as they were all along aware of the facts in question. 6. On the aspect of unjust enrichment, the appellant submits that the refund claims concerned were pertainin....
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....t of Bombay in the case of Arochem Industries v. Union of India[1991(56) ELT 505(Bom.), to submit that the refund claim for the period prior to the amendment in Section 11B carried out by Section 3 of Central Excise & Customs (Amendment) Act 1991, was not required to be considered while allowing the refund to the appellant. The appellant also submits that the law does not authorize the denial of relief on the score of unjust enrichment. The appellant, therefore, prayed for setting aside the adjudication order dated 31.07.2006 passed by Commissioner of Central Excise, Dibrugarh and allowing consequential relief in favour of the appellants. 8. The learned Special Counsel Shri Mihir Ranjan submits that the appellant was a manufacturer of plywood falling under erstwhile Tariff Item 16B of the First Schedule to the Central Excise and Salt Act, 1944. During the process of manufacture of finished goods, the appellant prepared an intermediate product - solution of urea or phenol with formalin (UF or PF Solution) that was consumed captively and used as a bonding agent in the manufacture of plywood. This was, however, assessed to Central Excise duty under Tariff Item 15A of this said Tari....
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.... the Collector(Appeals), Central Excise, Calcutta, who, vide his Order-in-Appeal, No. 276/ASM/83 dated 17.09.1983, set aside the order of the Assistant Collector, Customs & Central Excise, Jorhat, and remanded the matter for a fresh determination, per law after drawing the samples of the goods in question. 6. 11.08 1986 (i) The Chief Chemist, CRCL New Delhi, vide Test Report dated 11.08.1986 held that the Sample Solutions merits classification under Tariff Item no 15(A)(1) of the erstwhile tariff and Chapter Sub-heading nos. 3909.10 and 3909.51 of Schedule I of the Central Excise Tariff 1985 (new tariff). 7. 11.11.1986 Show-cause notice dated 11.11.86 proposing a classification of the solution under item 15A(1) of the erstwhile tariff issued. It also proposed to reject the refund claim dated 12.11.1982 for an amount of Rs.51.33.004.71. 8. 19.11.1986 The Department issued another show cause notice proposing the solution's classification under Sub-Heading No.3909.10/3909.51 of the New Tariff. 9. 27.02.1987 The Assistant Collector, Customs & Central Excise, Jorhat, vide a common order-in-original no. DIV/JOR/4/CE/CL/87 dated 27.02.1987 in respec....
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....lector, Customs & Central Excise, Jorhat, passed an order on 12.11.1991 vide which it was observed that though the products were captively consumed, duty paid on the same products had been realized from the ultimate consumers. Thus, a refund of the duty paid by the assessee would amount to unjust enrichment. Therefore, the assessee was not entitled to get the refund of duty paid in the light of the Central Excise & Customs Law (Amendment) Act, 1991 (No. 40 of 1991) and rejected the refund claims amounting to Rs. 51.33,004.71. 19. 27.07.1995 Being aggrieved with the Order dated 12.11.1991, the appellant filed Civil Writ No. 343/92 before the Guwahati High Court challenging the legality and validity of the Oder dated 12.11.1991, passed by the Assistant Collector, Customs & Central Excise, Jorhat. The Hon'ble High Court vide order dated 27.07.1995, held that the U.F/P.F solution captively consumed by the assessee was not a dutiable item, and the petitioner is not entitled to a refund, as the same would amount to unjust enrichment. 20. Meanwhile the appellant filed another writ, Appeal No 211/96, before the Division Bench against the High Court's order dated 27.07.19....
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.....01.2005 The Assistant Commissioner, Central Excise, Jorhat issued a demand cum SCN vide C.No.V(18)48/ACJ/REF/4550 dated 07.01.2005 alleging that a claim for refund amounting to Rs. 51,33,004.71 was erroneously made and required the Appellant to show cause to the Assistant Commissioner, Central Excise, Jorhat, as to why Rs. 51,33.004.71, should not be demanded and recovered under Section 11A of the Central Excise Act 1944. 27. 31.07.2006 The Commissioner, Central Excise, Dibrugarh, vide Order-in- Original No.4/COMMR/CH-44/ADJ/DIB/06 dated 31.07.2006, confirmed the demand of Rs.51,33,004.71 under Section 11 A (2) of the Central Excise Act 1944, along with interest under Section 11 AB of the said Act. 28. 15.02.2008 Deputy Commissioner, Central Excise vide Adjudication Order No. DIV/JOR/CEX/REF/06/2008 dated 15.02.2008 adjusted an amount of Rs.1,28,443/- from the revenue arrears payable to the assessee. 29. 10.03.2014 Being aggrieved by the Order-in-Original No.4/COMMR/CH- 44/ADJ/DIB/06 dated 31.07.2006, the assessee has filed the present appeal No.E-75314/2014 before this Tribunal. 30. 10.03.2014 Being aggrieved by Order DIV-JOR-CEX-REF-06/2008....
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....ai - 1 vs Morarjee Gokul Das Spinning & Weaving Co.Ltd.[2023 (384)ELT 487(SC)], the learned Special Counsel for the Revenue pointed out that no separate show cause notice under Section 11A was required to be issued, once the refund order was set aside, as both Section 35E and Section 11A of the Central Excise Act, operate in different fields and were meant to be invoked for different purposes. It was therefore his contention that the time limit for demand under Section 11 of the Act would not be applicable, to the case at hand. To buttress his case, the learned Special Counsel also invited reference to CBIC's circular no.423/56/98-CX dated 22.09.1998, pointing out that in view of the Hon'ble Apex Court's decision referred therein, the question pertaining to issue of notice under Section 11A and its time limit would become inconsequential. He also referred to certain other decisions in this regard. 12. Inviting reference to appeal No.E/75315/2014, the learned Special Counsel submitted that the same was not maintainable before the Tribunal as the impugned order in the said appeal was that of the Deputy Commissioner and no appeal against the said order would lie before ....