ORDER
Archana Wadhwa, Member (J)
1. The proceedings were initiated against the appellant vide show cause notice dt. 19-2-85 for recovery of set-off of duty on the ground that the requisite procedure under Notfn. No. 201/79 was not followed by them. The said show cause notice was adjudicated upon by the Commissioner of Central Excise, Patna, who dropped the demand for the period beyond five years, but confirmed the same for the balance period, vide his order-in-original dt. 31-12-87. Thereafter the appellant filed an appeal before the Tribunal and also deposited an amount of Rs. 3,02,362.57 (Rupees three lakh two thousand three hundred sixty two and fifty seven paise) and penalty of Rs. 10,000/- (Rupees ten thousand) vide treasury challan dt. 20-1-89. The appeal was disposed of by the Tribunal on 24-4-96 allowing the appeal on the point of time bar. Thereafter a reference application filed by the Revenue was also dismissed by the Tribunal vide order dt. 16-10-96.
2. After the dismissal of the reference application filed by the Revenue and as a consequence of allowing of their appeal by the Tribunal, the appellant filed a refund claim of the duty so deposited by them on 20-1-89. They were issued a show cause notice proposing to deny the credit on the ground of unjust enrichment. The Asst. Commissioner vide his impugned order rejected the claim by observing that the appellants have not been able to satisfy that the duty incidence has not been passed on to the consumer. Appeal against the above order did not succeed before Commissioner (Appeals). Hence the present appeal.
3. Dr. Samir Chakraborty, ld. Adv. appearing for the appellant submits that the said duty was deposited by them, when the appeal was pending before the Tribunal. In any case he submits that the demand of duty was confirmed against them by denying them the benefit of set-off in terms of the provisions of Notfn. No. 201/79. He submits that as per the provisions of Section 11B(2), proviso, the provisions of unjust enrichment are not applicable if such amount is relatable to refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made or any notification issued under this Act. As such he submits that the authorities below were not justified in rejecting the refund claim on the ground that the appellants have not been able to satisfy the Revenue about the duty incidence having been passed on to their customers. He also placed reliance on the Tribunal’s decision in the case of CCE, BBSR v. Orient Paper Mills – 1994 (73) E.L.T. 648 (T) = 1994 (4) RLT 502 (CEGAT-ERB) holding that in case of refund of credit of duty paid on the inputs used in the manufacture of the final product, the same is not to be denied on the ground of unjust enrichment. He also draws my attention to the Tribunal’s decision reported in 2002 (139) E.L.T. 125 (Tribunal) = 2001 (46) RLT 694. He submits that the Commissioner (Appeals) has rejected the appeal by referring to the Apex Court’s decision in the case of Solar Pesticides [2000 (116) E.L.T. 401 (S.C.)]. He submits that the issue in Solar Pesticides was entirely different and was related to the fact as to whether refund of duty paid on the imported raw materials used in the manufacture of final product would be hit by the bar of unjust enrichment or not. As such submits the ld. Advocate that the appellate authority has not considered the provisions of Section 11B(2) and have applied the decision of the Hon’ble Supreme Court which is not at all applicable to the facts of the instant case.
4. I have also heard Shri A.K. Pandit, ld. JDR for the Revenue.
5. There is no dispute that the duty in question, of which the appellants are claiming refund, is the duty deposited by them during the pendency of the appeal before the Tribunal and is relatable to the set-off of duty in terms of the provisions of Notfn. No. 201/79. As rightly contended by the ld. Adv. the said provisions carves out an exception in respect of the cases involving credit of duty. The appellants’ reliance on the Tribunal’s decision referred supra is appropriate and finalises the law. Accordingly following the ratio of the above decision I set aside the impugned order and allow the appeal with consequential relief to the appellants.