ORDER
G.A. Brahma Deva, Member (J)
1. This appeal arises out of and is directed against the Order-in-Appeal dated 24-8-1993 passed by the Collector of Central Excise (Appeals), Allahabad.
2. The appellants have claimed refund of excise duty on the ground that they have paid excess duty without claiming concession in terms of Notification No. 130/83, dated 27-4-1983.
3. The point to be considered in this case is whether the amount of duty paid in excess on the sugar cleared by the appellants during June, 1986 to September, 1986 at a normal rate in spite of the release order already received by them from the Directorate of Sugar which actually pertains to the additional free sale under the Incentive Scheme under Notification No. 130/83, dated 27-4-1983 is refundable under the provisions of the Central Excises and Salt Act, 1944. The refund claim filed by the party has been rejected by the Assistant Collector on the ground that notification does not provide anywhere that assessees may collect higher rate from the purchasers. It was the contention of the party that since higher rate of duty was paid without claiming benefit of Notification No. 130/83 and subsequently, they have chosen to file refund claim urging that they are entitled to get refund in terms of the aforesaid notification. On appeal filed by the party, the Collector (Appeals) also observed that the appellants have transacted the subject goods to the buyers at the time of removal during June, 1986 to September, 1986 and the incidence of duty had been passed on to the buyers.
4. Shri Bipin Garg, learned Advocate, appearing for the appellants submitted that authorities below erred in holding that the appellants are not entitled to refund of amount. He submitted that excess duty was paid by mistake of motion of the release order issued by the Directorate of Sugar and infact, they are entitled for concessional rate of duty in terms of Notification No. 130/83 and the same has not been properly considered by the authorities below. It is submitted that ratio of the decision of Allahabad High Court in the case of Kisan Shahkari Chini Mills v. Union of India and Ors., reported in 1983 (14) E.L.T. 2255 is clearly applicable to the facts of this case.
5. Shri Nayyar arguing for the Revenue submitted that apart from the fact whether they are entitled to refund of the amount in terms of Notification No. 130/83 or not, the refund claim is hit by unjust enrichment. There is clear finding by the Collector (Appeals) that incidence of duty had been passed on to the buyers. Furthermore, the decision referred to above by the appellants has not dealt with the issue with reference to the unjust enrichment in terms of Section 11B of the Act.
6. I have carefully considered the submissions made by both sides. The authorities below have not examined the issue clearly with reference to their entitlement in terms of Notification No. 130/83, dated 27-4-1983. The Assistant Collector rejected the claim only on the ground that notification does not provide to collect higher rate of duty. On the other hand, the Collector (Appeals) has concluded that since the appellants have not availed exemption in terms of Notification No. 130/83 of their own during the period in question in spite of release order issued by the Directorate of Sugar, the refund claim is not sustainable. Bom the authorities should have given clear finding whether their entitlement with reference to the notification is correct or not. On arriving at that conclusion they should have proceeded on the second issue whether refund is hit by unjust enrichment. In the absence of clear findings on these two issues, I am of the view that these issues require consideration. Accordingly, I am remanding the matter to the concerned Assistant Commissioner to give clear finding whether the appellants are entitled to refund or not in terms of Notification No. 130/83 and no arrival of the conclusion, if answer is positive, he may examine the issue with reference to the unjust enrichment following the recent case law on this issue. The assessee may make use of this opportunity and adduce evidence in support of their claim. Accordingly, the appeal is allowed by way of remand. Ordered accordingly.