- (1.) WE have heard Shri A.P. Mathur, learned counsel for the appellant. Shri Sambhu Chopra appears for the Revenue. By order dated 9 -7 -2002 in Reference Application No. 65 of 2000 the Court called for following questions from the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi: - - Whether Tribunal was justified in holding that the refund claim is barred by limitation except the only small part thereof which forms part of the endorsement in the personal Reserve Account?
(2.) THE facts of the case as stated in the statement sent by the Tribunal are as follows: - - The appellants manufactured Gummed paper Tape Slit into required sizes of width and length. A dispute therefore arose whether Gummed paper Tape is dutiable or not. The Department alleged that gummed paper tape was dutiable. The appellants contested stating that gummed paper tape is not dutiable, When matter came up to this Tribunal, this Tribunal held that gummed paper tape was not covered by the old Central Excise Tariff Item No. 68 and was not liable to duty. This Tribunal passed this order on 2 -2 -1990 Against this decision of this Tribunal, Revenue filed appeal before he Hon'ble Supreme Court in 1992. The Hon'ble Supreme Court rejected the said appeal The appellants submitted refund claim on 21 -7 -1990, which was received in the office of the Asstt. Commissioner on 23 -7 -1990. The claim was rejected. Against this rejection the appellants pled appeal before the Collector (Appeals). Ld. Commissioner (Appeals) examined this case and observed "the view of the judgment of Calcutta High Court in Haryana Plywood v CCE - : 1994 (74) E.L.T. 224 about the theory of undue enrichment is not to be applied to pending claims as the same is in a Customs case and moreover the judgment of the Supreme Court in Union of India v. Jain Spinners - : 1992 (61) E.L.T. 321 (S.C.) is different from that. Even though refund was applied in Sept. 91, this will attract the undue enrichment principle in view of the Supreme Court judgment and the amount of Rs. 64,450/ - will not be admissible to the appellants. Similarly endorsement of duly paid under protest on PLA will not be of any help and the amount of Rs. 51,025.00 also does not become to be refunded. The appellant is not entitled to any interest as there was no provision at that time for grant of interest in CESA, 1944 other claims remain unsubstantiated by the appellants. Appeal rejected accordingly. The appellant filed refund claim for the period 1 -3 -1971 to 26 -2 -1986. On TR 6 from 18 -1 -1982 to 23 -2 -1983 for an amount of Rs. 51,025/ - it was not mentioned that the duty was paid under protest, and so up to that period the claim was barred by time.
(3.) THE Asstt. Commissioner, Central Excise, Saharanpur by his order dated 24 -8 -1995 found that an amount of Rs. 64,451/ - is payable under Section 11B, which would be credited to the Consumer Welfare Fund out of claim of Rs. 20,58,844.30, The Tribunal after discussing the facts, recorded findings that the refund claim except for short period is hit by limitation because it was only for a period from 18 -1 -1982 to 23 -2 -1983, when there was an endorsement on PLA regarding the duty paid under protest.;