Judgment:
1. This is an appeal against Order-in-Appeal No. 137/2001 dated 6-8-2001 passed by the Commissioner of Central Excise (Appeals), Hyderabad.
2. The issue relates to refund of duty. The case has a chequered history. To appreciate the issues, the brief facts are given. M/s. S.P. Industries and Chemicals (P) Ltd. (hereinafter referred to as M/s.
ESPI) are the manufacturers of oil of olay on job work basis for M/s.
Procter and Gamble India Ltd. (hereinafter referred to as M/s. PGIL).
The appellants. PGIL filed a refund claim dated 7-5-1993 for a sum of Rs. 25,33,669.45, claimed to be the excess duty paid by ESPI, the job worker of the appellant on the product oil of olay from 2-4-1989 to 31-3-1990. The refund claim was based on the decision of the Hon'ble Supreme Court in the case of Ujagar Prints v. UOI reported in 1990 (38) E.L.T. 535 (S.C.) decided along with ESPI's own case. Later, the claim was revised to Rs. 24,33,502.63. The jurisdictional authority rejected the claim of PGIL and decided the claim of ESPI by crediting the claim amount to the Consumer Welfare Fund under Section 11B read with Section 11D of the CE Act 1944. Both PGIL and ESPI appealed to the Commissioner (Appeals). The Commissioner (Appeals) rejected the appeal filed by ESPI but in respect of the appeal filed by GPS, he remanded the case with a direction to examine the appellants' claim on merits including limitations by putting the appellants to further notice. Therefore, a show cause notice 28-2-1997 was issued to PGIL proposing to reject the reclaim under Section 11B as the claim was not filed within 6 months from the date of payment of duty. Since the duty was paid during the period from 1-4-1989 to 31-3-1990 and claimed on 7-5-1993, the Asst.
Commissioner, after following the necessary formalities, rejected the refund claim of PGIL PGIL approached the Commissioner (Appeals). The Commissioner (A) upheld the rejection order of the Asst Commissioner.
The appellants are aggrieved over the impugned Order-in-Appeal dated 6-8-2001, hence they have come before this Tribunal for relief.
3. Smt. L. Maithili, learned advocate appeared on behalf of the appellants and Shri K.S. Reddy, learned DR appeared for the Revenue.
4. The learned advocate urged that as far as the appellants PGIL are concerned, they have very strong case both on account of locus standi and time bar. She said that the entire refund has arisen on account of the decision of the Hon'ble Supreme Court in the M/s. Ujagar Prints case. Hence on merits, there is no dispute regarding the entitlement to refund. M/s. ESPI are the job workers of the appellants. They had actually cleared the goods on payment of duty to PGIL. Hence PGIL have borne the duty. Since there was no price variation, the burden of duty has not been passed on to the buyers. As regards time bar she referred to para 15 of the Order-in-Original dated August 1995 passed by the Asst. Commissioner of Customs and referred to the observation that both the claim of ESPI and PGIL are treated as one for the purpose of this refund. Hence she argued that the refund claim of ESPI should be treated as the refund claim of the appellant for purposes of limitation under the Central Excise Act.
5. The learned DR said that the appellants have no locus standi and in any case thier claim is clearly time barred, as stated by the lower authorities.
6. We have gone through the records of the case carefully. The Commissioner (Appeals) has given a very detailed finding with regard to all the issues arises out of this order. He has held that payment of duty under protest by ESPI does not ipso facto imply that PGIL is also immune from the application of time bar. He has relied on the decision of the Larger Bench of the Tribunal in the case of National Winder v.CCE, Allahabad been paid during 1-4-89 to 31-3-1990 PGIL has claimed the refund claim on 5-7-1993 i.e. much after the expiry of 6 months from the date of purchase of the goods. Therefore, in terms of Section 11B Sub-clause (c) of CE Act that the refund claim is time barred. Moreover, we also cannot accept the argument that the claim of ESPI should be treated as the claim of the appellant. Again the Commissioner (Appeals) in para 9 (ii) has considered the aspect of unjust enrichment also. He has come to the conclusion that the appellant has gained because of the decision of the Supreme Court and the claim is hit by the law of unjust enrichment. He has observed Court "the oil of olay manufactured by ESPI was being charged to duty on higher assessable value based on the selling price of PGIL right from 1997 onwards, which means that the incidence of excess excise duty was the recovered by M/s. PGIL from their stockist/dealers. Even after lowering of the assessable value in terms of Supreme Court in M/s. Ujagar Prints, PGIL selling price to their stockist remained the same, which implies that the incidence of excess excise duty, which was earlier paid to the central excise exchequer is pocketed by PGIL which is their additional profit. Hence the unjust enrichment clause is applicable in the facts and circumstances of the case and on this count also, the refund is not admissible. Thus viewed from any angle, PGIL are not eligible to the refund". There is no infirmity in the above reasoning. In view of the above observations, we are of the view that the appellants are not entitled for the refund claim. Hence we reject the appeal.