IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CEA No. 106 of 2009 (O&M) Date of Decision: December 3, 2009 State of Haryana …Appellant Versus Commissioner of Central Excise, Chandigarh …Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.D. Sharma, DAG, Haryana, for the appellant. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The State of Haryana has filed the instant appeal under Section 35G of the Central Excise Act, 1944 (for brevity, ‘the Act’) with a prayer for quashing order dated 28.5.2009 (A-9) passed by the Customs, Excise and Services Tax Appellate Tribunal, New Delhi (for brevity, ‘the Tribunal’) dismissing its appeal and declining its claim for refund. It is pertinent to mention that the appellant had purchased plastic polythene covers from M/s Shivalik Poly Plast Products Limited, Parwanoo in the year 1986. There was dispute about the exigibility of the polythene covers which was settled in favour of the CEA No. 106 of 2009 (O&M) seller-assessee. The duty demanded and penalty imposed were recovered by the respondent by adjusting from the refund sanctioned to the seller of the appellant. The Tribunal granted refund in respect of the penalty recovered from them but declined to order grant of refund of duty recovered from them by applying the principle of unjust enrichment holding that the burden of duty stood passed on to the purchaser. The appellant as a purchaser filed claim for refund in 1996 which was rejected by the Original Authority on 30.12.2002. On further appeal, the Commissioner (Appeals) also upheld the order of the Original Authority. The Tribunal rejected the further appeal of the purchaser- appellant holding that the purchases have taken place in 1986 when there was no provision to claim refund by a purchaser like the appellant in respect of excisable goods. The aforesaid provision was introduced only with effect from 20.9.1991. The Tribunal further held that there was no evidence produced on record to show that the seller of the purchaser-appellant had paid the duty under protest. Any recovery by way of adjusting a confirmed demand from refund due to the party cannot be treated as payment under protest. The dispute between the seller of the purchaser-appellant and the Central Excise Department stand settled and the purchaser-appellant has entered into the fray in 1996 and it could not be regarded to have made payment under protest as the protest by the supplier to the department cannot be considered as a protest by the purchaser. The claim by the purchaser like the appellant was required to be made within six 2 CEA No. 106 of 2009 (O&M) months from the date of purchase. In either case, the purchaser- appellant did not claim the refund within the time limit prescribed. Having heard learned State counsel we do not find any justification to interfere in the order passed by the Tribunal. The purchaser-appellant in any case acquired the right to seek refund only on 20.9.1991 when application for refund was filed. Apart from the fact that there was delay in filing the application, it is doubtful whether the purchaser like the appellant could have claimed refund in respect of the transaction which has taken place in 1986. The appeal is wholly misconceived and does not lead to framing of any question of law warranting its admission. Accordingly the appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (JASWANT SINGH) December 3, 2009 JUDGE Pkapoor 3