- (1.) THIS Central Excise Appeal has been filed under Section 35G of the Central Excise Act, 1944 against the final order dated 15th April, 2008 passed by Customs, Excise & Service Tax, Appellate Tribunal. This appeal has been admitted on the following two questions of law which is as under: 1. Whether under the facts and circumstances of the case the finding recorded by Tribunal to the effect that the amount of refund claim is shown in the balance sheet of the financial year 1997 -98 as Excise duty recoverable from the Revenue Department, is perverse and contrary to evidences on record, rendering the order of Tribunal to be bad in law and on facts both?
(2.) WHETHER , under the facts and circumstances of the case the respondents have rebutted the statutory presumption under Section 12B of the Act so as to be entitled for refund under Section 11B of the Act? 2. Brief facts of the case giving rise to this appeal are that the respondent submitted a classification list for their product "Gulabari" wherein the respondent claimed classification of product as Ayurvedic Medicament under sub heading 3003.30 of Central Excise Tariff Act, 1985. The said classification list was provisionally approved. The department claimed that aforesaid product of respondent is classifiable under sub heading 3303.00 liable to Central Excise duty at the rate of 18%. A show cause notice dated 19.9.1997 was issued to the respondent and by an adjudication order dated 11.12.1997, it was held that product "Gulabari" is classifiable under sub heading 3303.00. The respondent by letter dated 18.12.1997 wrote to the Assistant Commissioner, referring to order dated 11.12.1997 that the respondent is paying differential excise duty "under protest". In the letter further mentioned that respondent shall be claiming the refund once the issue is resolved and the claim will, therefore, be not hit by unjust enrichment clause. The respondent from 22nd January, 1998 to 15th December, 1998 deposited total differential excise duty amounting to Rs. 11,478,517/ -. Against the adjudication order dated 11.12.1997, respondent preferred an appeal before the Commissioner (Appeals) Central Excise, which was dismissed and further the respondent again preferred an Appeal before the Tribunal, which appeal was allowed on 14.1.2000 setting aside the demand. The Tribunal while setting aside the demand had observed that it is open for the department to arrive at correct classification of the impugned goods in appropriate proceedings. An order dated 27.12.2001 was passed classifying the product "Gulabari" under Chap. Heading 3303.00. Against the said order appeal was filed before the Commissioner which was dismissed on 31.3.2003 and against the order of Commissioner, an Appeal was filed before the Tribunal, who vide its order dated 10.10.2003 set aside the order of the Commissioner. The respondent, thereafter, filed a refund claim of Rs. 11,478,517/ - on 13.1.2004.
(3.) THE Assistant Commissioner vide its order dated 20th January, 2006 although allowed the refund claim of Rs. 11,478,517/ - but it was held that same is hit by principles of unjust enrichment, hence same was credited to "Consumer Welfare Fund".;