ORDER
Smt. Archana Wadhwa
1.
Vide the impugned orders the authorities below have rejected two refund claims of the appellant for Rs. 42,999.50 (rupees forty two thousand nine hundred ninety nine and fifty paisa) pertaining to the period August 1972 to March 1980 and of Rs. 44,111.40 (rupees forty four thousand one hundred and eleven & forty paisa) pertaining to the period 1.4.80 to 31.3.81. The said refund claims have been rejected on the point of time bar as also on the ground of unjust enrichment.
2. Shri B. Bhattacharjee, ld. consultant appearing for the appellant submits that the dispute over the said refund claims have been going on for a number of years. Ultimately the Tribunal vide its order No. 1247/Cal/94 dt. 5.12.94 remanded the matter to the Asst. Commissioner to adjudicate upon the refund claims afresh by taking into consideration the Asst. Commissioner’s letter dt. 17.1.83. During de novo proceedings the said letter was considered and the Asst. Commissioner observed that the appellant stated paying duty under protest from 23.8.82. On the other hand the appellants’ contention is that the duty was being paid by them under protest w.e.f. 4.3.81. They have also produced a letter dt. 4.3.81 on record. On a perusal of the said letter it is found that the appellants have made a general claim about payment of duty on the post-manufacturing expenses and claimed refund of the excess duty so paid by them. There is no quantum of refund mentioned in the said letter neither the period of the refund. The said letter is a general sort of letter making a request to the Asst. Commissioner to treat the same as claim for refund for the amount of duty paid in excess. No particulars as regards the quantum or the period or the documents etc. have been disclosed in the said letter. The appellants have made a prayer that the said letter should be considered as a protest letter not only for the period subsequent to that but also for the period prior to the said letter. The period involved in the refund claims is from August 1979 to March 1980 and from April 1980 to March 1981.
3. The appellants have also made a grievance of the fact that the Asst. Commissioner has not considered the letter dt. 17.12.83 in terms of the directions of the Tribunal. It is seen from the impugned order that Asst. Commissioner has taken the said letter into consideration and have given a finding that the duty was paid under protest w.e.f. 23.8.82. As such the appellants’ contention that the directions of the Tribunal has not been followed by the original adjudicating authority have no merits.
4. The appellants have also challenged the rejection of the refund claim on the point of unjust enrichment by submitting that the said issue was not before the Tribunal while remanding the matter and as such the original adjudicating authority had gone beyond the order of the Tribunal. I do not find favour with the above submissions. As per the provisions of section 11B relating to the refund claim the unjust enrichment aspect has to be looked into and the fact that it was not agitated before the Tribunal in the first round of the proceedings will not take away the powers of the original adjudicating authority to look into the same. He has given a clear finding that the appellants have not been able place on record any evidence to show that the amount in question was not passed on to their buyers and on the other hand the bills and invoices raised by the appellants clearly show that the said amount was recovered by them from their customers. The appellants have referred to the Tribunal’s decision in the case of Modi Paints-2000 (38) RLT 302 (CEGAT) and in the case of Star Paper Mills-2000 (122) ELT 114 (T) wherein after considering the Supreme Court’s decision in the case of Mafatlal Indus., the Tribunal have observed that the bar of unjust enrichment is not applicable in case of provisional assessments being finalised and the refund arising as a result of such finalisation. However, in the instant case I find that there was no provisional assessment at all. As such the ratio of the decisions referred to by the ld. consultant is not applicable to the facts of instant case.
5. In view of the foregoing I do not find any merits in the appellants’ appeal and reject the same.