Full Judgment
2. The facts are not much in dispute. After the determination of the ACP, as the appellants were working under the Compound Levy Scheme, at the relevant time, they paid the duty for the period September, 1997 to March, 1998. However, they simultaneously also lodged the claim for abatement of the duty on account of closure of their factory. The Commissioner (Appeals) allowed the abatement claim vide order dated 12.11.1998. Thereafter, the duty liability of the appellants was worked out to Rs. 9,35,505/-, whereas they had already paid duty of Rs. 11,30,800/- 3. The appellants accordingly filed the refund claim for the refund of the excise duty amount of Rs. 1,95,295/-. The adjudicating authority rejected the claim through the order-in-Original on two grounds; firstly, that it was time barred having been filed in November, 1998 whereas the duty paid was for the period September, 1997 to March, 1998; and secondly, that the claim was hit by principle of unjust enrichment. The Commissioner (Appeals) has affirmed the said order of the adjudicating authority.
4. From the resume of the facts, detailed above, on the face of it, the refund claim of the appellants could not be held to be time-barred. It was filed within six months from the date of passing of the abatement of duty order in their favour by the Commissioner (Appeals). The right to claim the refund of the excess duty arose to them only after the passing of that order. The refund claim filed by the appellants was within time and as such could not be dismissed on this ground by the authorities below.
5. So far as the second ground is concerned, it requires to be re-examined by the adjudicating authority. During the relevant period, the appellants were working under the Compound Levy Scheme. The Larger Bench of this Tribunal in the case of Moohinder Steels Ltd. v. CCE, Chandigarh 2002 (145) ELT 290 (T-LB), had taken the view that provisions of Section 11A of the Act has no application to the cases covered under the Compound Levy Scheme. In the face of third judgment of the Tribunal, it requires to be examined by the adjudicating authority, as to whether the provisions of Section 11B of the Act could be invoked against the appellants especially when the demand of duty under the Compound Levy Scheme was based on the ACP and not on the clearance of the goods. The determination of the ACP did not depend upon the clearances of the goods by the appellants, but was made by the Commissioner Keeping in view the capacity of their rolling mill under the Compound Levy Scheme. No finding, in this regard, has been recorded by the adjudicating authority or even by the Commissioner (Appeals) in the impugned order. The learned SDR has also referred to the judgment of this Tribunal rendered in the case of Enva Chem India Ltd. v.Mumbai, 2004 (166) ELT 344, wherein the principle of unjust enrichment in a case of Compound levy Scheme has been also held to be applicable, but the larger Bench decision of the Tribunal, referred to above, has not been cited therein. Moreover, the appellants deserved to be given an opportunity to prove that they did not pass the incidence of duty to the ultimate customers, which, in may view, has also not been afforded to them.
6. In view of the discussion made above, the impugned order is set aside and the matter is sent back to the adjudicating authority for fresh decision in the light of the observations made above, after hearing both sides. The appeal of the appellants stands allowed by way of remand.