IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Central Excise Reference No. 12 of 2003 Date of decision: 8.4.2009. Commissioner, Central Excise, Chandigarh … Petitioner. Versus M/s Dynamic Laminates Ltd. … Respondent Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Sandeep Sharma, Assistant Solicitor General of India. For the respondent. Mr. Parveen Chandel, Advocate. Per Deepak Gupta, J (oral) This Excise Reference has been admitted on the following question of law:- “1. Whether party is entitled for exemption under Notification No.1/93-CE dated 28.2.1993 and consequential refund of excise duty when they had not claimed exemption under Notification No.1/93-CE dated 28.2.1993 in their classification list filed on 1.4.1995 i.e. at the start of financial year?” The respondent is a manufacturer engaged in the manufacture of Electric Insulators, Paper and Plastic based Copper foil, etc. It claims benefit of notification No. 1/93-CE, which relates to S.S.I exemption w.e.f. 1.4.1993. As per this notification, manufacturers whose total clearances of excise goods did not exceed 200 lacs (2 crores) were entitled to benefit 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 of certain concessions in respect of excise duty. These benefits were available only upto the clearances of 75 lacs in three different slabs. In the present case, admittedly the manufacturer did not claim the benefit of notification the and paid the entire excise duty and cleared the goods. After the goods had been cleared and the excise duty had been paid, the manufacturer filed a claim, claiming that it is entitled to benefit of this notification and therefore, a portion of the excise duty paid may be refunded. This claim of the manufacturer was opposed by the department and one of the grounds was that this would amount to undue enrichment of the manufacturer. The authorities upto the level of Commissioner (Appeals) upheld the stand of the department. However, the CEGAT vide its order dated 1.1.2003 has held that since manufacturer is covered under the notification it cannot be denied the benefit thereof. It would, however, be pertinent to mention that CEGAT itself has held that refund is subject to provisions of unjust enrichment. Once the goods had passed out of the control of the manufacturer, we fail to understand how the manufacturer will identify and pay back the excise to the customers, who have already paid the prices on the basis of the higher excise, which obviously the manufacturer has collected from the ultimate customers. An option was given to the manufacturer to avail of the benefits of the excise notification. At the relevant time it did not avail of these benefits. The manufacturer chose to pay full excise duty and get its goods cleared. Obviously, after clearance the goods must have gone to the distributors, wholesalers and retailers and ultimately to the customers. It is not possible to now identify each individual customer. The manufacturer has obviously recovered the full excise duty paid by it 3 from the customers and any order of refund would amount to unjust enrichment of the manufacturer. It is obvious that this was only a ruse on the part of the manufacturer to get refund of excise duty which it would not have to pay to the ultimate customers. Since the customers who have ultimately paid the duty cannot be identified, there is no reason why the manufacturer who has collected the excise should be given the benefit of this notification. We, therefore, decide the question referred to in favour of the revenue and against the manufacturer. The Excise Reference is answered in the aforesaid terms. ( Deepak Gupta ), J. 8th April, 2009 ( V.K.Ahuja ), J. ™