Full Judgment
2. The learned Counsel has contended that since duty was paid after the clearance of the goods when the annual capacity of production of the appellant's factory, was finally determined by the Commissioner, vide order dated 16-4-99. Therefore, the principle of unjust enrichment did not apply to their case.
3. On the other hand, the learned JDR has reiterated the correctness of the impugned order.
4. We have heard both the sides and gone through the record. The facts are not much in dispute. The appellants are engaged in the processing of textile fabrics as independent processors. They filed a refund claim on the ground that they had paid excess duty on account of inclusion of length of galleries while determining their annual capacity of production under the Hot Air Stenter Independent Textile Processor Annual Capacity Determination Rules for the period 16-12-98 to February, 2000. Their duty liability was determined by the Commissioner vide order dated 18-12-98 at Rs. 58 lakhs per month w.e.f. 16-12-98 provisionally. They however paid duty under protest as they contested the inclusion of the galleries in the determination of their annual capacity of production. That provisional order was finalised by the Commissioner vide assessment order dated 16-4-99 vide which they were required to pay Rs. 61,68,000/- per month. The duty was paid by the appellants under protest for the period 16-12-98 to July, 99, on 15-7-99. The final order of the Commissioner was however, ultimately set aside by the Tribunal vide order dated 28-2-2001.
5. Thereafter, the appellants lodged the claim for refund of the duty paid by them in excess for the period in question 16-12-98 to February, 2000. So far as refund of duty paid in lumpsum on 15-7-99 is concerned, in our view, the same cannot be said to be hit by the principle of unjust enrichment as this payment was made in lumpsum, for the clearances made earlier to that, keeping in view the ratio of law laid down in an identical case in Commissioner of Central Excise, Jaipur-II v. A.K. Spintex - 2004 (165) E.L.T. 170. However, the claim of the appellants for the refund of the excess duty paid after that date, has to be governed by the principle of unjust enrichment as the same was paid every month when simultaneously clearances were also made by the appellants. Therefore, the appellants were required to prove that the incidence of duty had not been passed on by them to their buyers. But they have failed to do so. Even if it is taken that duty was paid by them under protest that will not debar the applicability of principle of unjust enrichment in view of the latest pronouncement of the Apex Court in Commissioner of Central Excise, Mumbai-II v. Allied Photographies India Ltd., 2004 (166) E.L.T. 3 (S.C.). Therefore, the appellants are not entitled to the refund of the alleged excess duty paid by them, after 15-7-99.
6. In the light of the discussions made above, the impugned order accordingly stands modified. The appeal of the appellants stands disposed of in the above terms.