ORDER
D.N. Panda, Member (J)
1. Grievance involved in this appeal as per learned Counsel for Appellant is that the refund claim made on 13.9.89, not entertained for a period of six years, has debarred the appellant from its claim in the plea of unjust enrichment by Revenue. This grievance is redressable following the ratio laid down by the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Chennai v. T.V.S. Suzuki Ltd. . In view of settled position of law and the Appellant having exercised its right to refund should not be debarred for the lapse of the Department keeping quiet.
2. Ld. JDR, Shri P. K. Das, for the Revenue, submitted that doctrine of unjust enrichment having been incorporated in the statute book and this being an application in relation to duty paid under protest nor for any other mode of litigation, the refund application was liable to meet scrutiny of unjust enrichment. Also it was contended by him that the appellant without meeting such test is not entitled to the refund.
3. Heard both sides and perused the records. Right to refund arose on 25.8.89 when the appellate order conferring right to refund could see the light of the day. It is unfortunate to notice that the impugned order itself shows that although the first appeal order conferring right to refund was passed on 9.9.87 that was issued on 25.8.89 i.e. merely two years after passing of the order. Although Revenue disputes that the duty was not paid under protest, conduct of the appellant disputing the classification itself amounts to payment of duty under protest awaiting the decision on classification. Even though, duty was not specifically stated to have been paid under protest, there is no material on record to conclude otherwise. This Tribunal in the case of ICI India Ltd. v. Commr. of Central Excise (Order No. A-1132/Kol/07 dated 11.6.07) has held that pendency of refund claim before the authorities is not hit by the amended law. The question of bar of limitation arising in this case can only be decided taking into account the day on which right to refund arose. In this case, right to refund arose on 25.8.89 and the appellant had filed refund claim on 13.9.89. Therefore, the right arose on that day cannot be demolished by any plea of bar of unjust enrichment for the delay made in considering application of Appellant. During pendency of such application for a period of nearly six years, law relating to refund had undergone amendment in the year, 1991. Following the ratio laid down by the Hon’ble Supreme Court in the case of T.V.S. Suzuki Ltd. (supra), the claim of the appellant is entertainable. Added to this, the appellant is also entitled to the ratio laid down by the Hon’ble Supreme Court in the case of M.R.F. Ltd. v. Collector of Central Excise, Madras .
4. In the result, appeal is allowed.
Dictated and pronounced in the open Court.