ORDER
Jyoti Balasundaram, Vice President
1. The issue in the above appeals namely, as to whether the assessee’s claim for refund of Rs.14,11,605/- is barred by limitation and also hit by doctrine of unjust enrichment is taken up for decision by this common order.
2. The relevant facts are that the appellants herein above are engaged in the manufacture of various chemicals and fertilizers and also manufacture of ammonia, which is exempted from payment of duty under Notification No.40/85-CE dated 17.03.85 subject to the condition that the ammonia is used in the manufacture of fertilizers and molten urea. Show cause notice dated 02.07.1986 was issued proposing the denial of benefit of the Notification on the ground that Ammonia was used for a purpose other than that specified in the Notification and proposing recovery of duty of Rs.14,11,605/- on quantity of 1411.605 Mts of Ammonia. The demand was confirmed by the Assistant Collector vide his order dated 26.9.1986. The appellants paid the disputed duty demand on 28.11.1986 and filed an appeal before the Commissioner (Appeals), who vide his order dated 3.7.87 allowed the assessees’ appeal by way of remand. After the remand, case, heard by the Assistant Collector; vide is order dated February 1988 the demand was vacated. The assessees filed a claim for refund on 15.3.1988; the claim was rejected by the Adjudicating Authority by order dated 23.8.1195 on the twin ground of limitation and unjust enrichment; by order dated 7.10.1997, the Commissioner (Appeals) upheld the adjudication order; the Tribunal by its order dated 21/08/98 set aside the appellate order holding that the claim was neither time barred nor hit by unjust enrichment. The reference application filed by the Department was also rejected by the Tribunal vide order dated 21/07/1999. On 31/12/99 by a fresh order the Dy. Commissioner granted the refund claim to the appellants. On 27/4/2000 a show case notice was issued for recovery of the amount erroneously refunded as per Order-in-Original dated 31/12/1999. This notice was adjudicated by order dated 11/2/2002 where the demand was confirmed, and the order was upheld by the Commissioner (Appeals) by his order dated 9/09/03. This order has been challenged in Appeal No.2749/03.
3. The department also filed an appeal against the order dated 31/12/99. The department’s appeal was allowed by the Commissioner (Appeals) vide his order dated 19/10/2001 relying upon the Apex Court judgment in the case of Solar Pesticides. This order is challenged in Appeal No.E/3261/2001.
4. We have heard both sides. In the assessees own case vide order reported in 1998 (28) RLT 794 (CEGAT) in respect of the same refund claim, the Tribunal has held that since the duty was paid pending appeal before the Commissioner (Appeals) in terms of Section 35F of Central Excise Act, 1944, time limit specified in Rule 11B will not apply. Therefore, the finding of the authorities that the refund claim is barred by limitation is not sustainable and we accordingly set aside the same. As regards unjust enrichment, the Commissioner (Appeals) has relied upon the Apex Court judgment in the case of Union of India Vs. relied upon the Apex Court judgment in the case of Union of India v. Solar Pesticides Pvt. Ltd. – 2000 (116) ELT 401 (SC). However, the ratio of the judgment is not attracted to the facts of the present case. The Supreme Court was concerned with the issue as to whether bar of unjust enrichment would apply in the case of captive consumption. In the present case, the question is whether such bar would be attracted when duty is paid subsequent to the clearance of the goods (the clearance of goods by the appellants was during he months of april and May 1986 wile the duty was paid in November 1986 as per Assistant Commissioner’s order dated 26/9/1986).
5. In these circumstances, the Tribunal’s order in the case of Gwalior Oil Mills v. Commissioner of Central Excise, Bhopal-2002 (52) RLT 648 (CEGAT.Del) holding that the presumption under Section 12B of the Central Excise Act, 1994 that incidence of duty has been passed on to the buyer will not be attracted when the payment of duty is paid subsequent to clearance goods, is squarely applicable. The above order has been followed in the case of Plas Pack Industries and Ors. v. CC & CE, Ahmedabad-2004 (63) RLT 207 (CESTAT-Mum). The finding of the authorities below that the refund claim is hit by doctrine of unjust enrichment is also not sustainable and we accordingly set aside the same.
6. In the result, we set aside the impugned orders and allow the appeals.