- (1.) Heard Sri Shakeel Ahmad, learned Counsel for the appellant and Sri Krishna Agarwal, learned Counsel for the department.
(2.) This Central Excise Appeal has been filed by the assessee being aggrieved b y the order of the Customs Excise and Service Tax Appellate Tribunal dated 26.09.2012 by which the Tribunal has dismissed the appeal filed by the assessee and confirmed the rejection of claim of refund made by the assessee before the lower authorities. The questions of law sought to be answered are hereunder:- "(i) Whether upon the facts and circumstances of the case, the Tribunal was justified in holding that irrespective of the purpose for which the duty has been granted under notification no.132/82-CE dated 21.04.1982 in respect of the excess production of sugar during the lean period from May 1982 to September 1982, refund on account of the exemption of notification would be subject to the principle of unjust enrichment ? (ii) Whether upon the facts and circumstances of the case, the Tribunal has rightly applied the decision of Apex Court in Sahkari Khand Udyog v. CCE reported in 2005 (181) ELT 328 which was for a different notification no.108/78-CE? (iii) Whether upon the facts and circumstances of the case, the Tribunal has committed an error of law while holding that Sub-Section (3), read with Sub- Section (2) of Section 11B introduced w.e.f. 20.09.1991, no refund can be made as rebate in respect of excess production of sugar during lean season in terms of notification no.132/82-CE is not mentioned amongst the exception? (iv) Whether upon the facts and circumstances of the case, the Tribunal was justified in rejecting the claim of the appellant observing that the appellant has not proved that the incidence of duty whose refund has been claimed has been borne by him and had not been passed on to any other person and the refund claim made during period w.e.f. 20.09.1991 would be subject to the principle of unjust enrichment?"
(3.) The period of dispute is 1st of May, 1982 to 30th September, 1982. During that period by virtue of Notification No.132/82- CE dated 21.04.1982 an exemption had been granted on the duty of excise and especially duty of excise leviable on sugar in respect of sugar produced in the factory during the period commencing on 1st day of May, 1982 and ending with 30th day of September, 1982.;