ORDER
Lajja Ram
1. This is an appeal filed by M/s. Unipatch Rubber Ltd. The matter relates to the refund claims filed by the appellants after the Tribunal while disposing of their Appeals No.E/1891-1892/88 vide Final Order No.668-671/97-A dated 17.3.97 decided the matter in their favour. The matter related to valuation and the issue for consideration was whether their buyers, M/s. Indag Rubber were their related person or not. Earlier, the Astt. Commissioner of Central Excise had taken a view that M/s. Indag Rubber were the related person of the assessee and the higher discount of 36% was not admissible to them.
2. It was at this stage according to the ld. Advocate, Shri M.P. Devnath that the appellants were directed to pre-deposit a sum of Rs.73,029.98. The Commissioner of Central Excise (Appeals) also decided the matter against the appellants. The Tribunal however in the order referred to above decided in favour of the appellants. The refund of the amount deposited after the adjudication order, was not granted and a show cause notice was issued on the ground that the refund claim was hit by time bar.
3. Shri M.P. Devnath, Advocate submitted that it was not a case where the refund claim has been made of the duty which the assessee had paid at the time of the assessment. It was a case of pre-deposit as the Commissioner of Central Excise (Appeals) insisted that for hearing their appeal the disputed duty amount should be pre-deposited. He referred to the Tribunal’s Final Order in their case being No. 668-671/97-A dated 17.3.97. He also submitted that in similar circumstances in the case of Kota Oxygen Vs. CCE, Jaipur – 2000 (41) RLT 721 (CEGAT) a view has been taken by the Tribunal that when the amount is pre-deposited in compliance with the provisions regarding pre-deposit, the limitation will not apply.
4. Shri Ashok Kumar, JDR submitted that the appellants have not filed the refund claim within the period of limitation and thus, the refund claim has been rightly dis-allowed.
5. After hearing both the sides and after going through the facts on record, I find that the facts are not in dispute. The amount, which was sought to be refunded under refund claim dated 8.10.97 had been pre-deposited in pursuance of the directions of the Commissioner of Central Excise (Appeals) for hearing the appeal of the appellants. It is also clear from the facts that the deposit was made on 12.4.88 under protest. This has also been mentioned in the party’s letter dated 12.12.88 which has been referred to in the Tribunal’s Order. After going through the facts on record, I agree with the submissions of the ld. Advocate that it was a case of pre-deposit and the limitation will not apply in this case.
6. The ld. Advocate submitted that the appellants at no stage had collected this amount from their customers and the amount was deposited after the goods had already been cleared after assessment.
7. The ld. JDR submitted that in the impugned order the refund claim has been rejected solely on the ground of limitation and there is no discussion with regard to unjust enrichment.
8. Noting the submissions of the ld. Advocate and keeping in view the fact that the matter is very old, the demand was made on 12.4.88, I consider that the provisions of unjust enrichment may not be applicable as the ld. Advocate submitted that this amount has not been collected from their buyers.
9. With these observations, the appeal is allowed. Ordered accordingly.
Order dictated & pronounced in the Open Court on 13.3.2001.