The main legal point established in the judgment is the timing of the application for refund in the context of duties paid under protest and the issue of unjust enrichment.

ORDER

1. THE APPELLANT CLASSIFIED ITS PRODUCT UNDER SUB-HEADING 2404.60 OF THE CENTRAL EXCISE ACT AND PAID DUTY ON THAT BASIS TILL 27-7-1990 WHEN, ACCORDING TO THE APPELLANT, THE INSPECTOR, CENTRAL EXCISE VERBALLY DECLINED TO CLEAR THE APPELLANTS PRODUCT UNLESS THE DUTY AT A HIGHER RATE UNDER TARIFF SUB-HEADING 2404.50 WAS PAID. THERE IS SOME DISPUTE AS TO THE DATE ON WHICH SUCH A VERBAL DIRECTION WAS GIVEN BY THE INSPECTOR BUT IT IS NOT IN DISPUTE THAT THE APPELLANT HAS BEEN PAYING THE DUTY ON THE BASIS THAT THE PRODUCTS WERE CLASSIFIABLE UNDER TARIFF SUB-HEADING 2404.50 FROM 25-8-1990. THE PAYMENTS WERE MADE UNDER PROTEST.

2. THE CLASSIFICATION LIST WAS APPROVED ON THE BASIS THAT THE APPELLANTS PRODUCTS WERE CLASSIFIABLE UNDER SUB-HEADING 2404.50 IN 1994. IN THE SAME YEAR, ON 18-2-1994 THE CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL (CEGAT) DECIDED IN A SIMILAR CASE (LACHMAN DAS BIHARI LAL) THAT THE PRODUCTS WERE CLASSIFIABLE UNDER SUB-HEADING 2404.60. ON THE BASIS OF THIS DECISION OF THE TRIBUNAL, THE APPELLANT FILED AN APPLICATION FOR REFUND OF THE DUTY WHICH HAD BEEN PAID BY IT UNDER PROTEST ON THE BASIS OF THE CLASSIFICATION OF ITS PRODUCT UNDER SUB-HEADING 2404.50.

3. AS FAR AS THE DEPARTMENTAL AUTHORITIES ARE CONCERNED, THEY TOOK THE VIEW THAT THE APPELLANT HAD BEEN UNABLE TO ESTABLISH THAT THE HIGHER RATE OF DUTY HAD NOT BEEN PASSED ON TO ITS CUSTOMERS AND THEREFORE WAS NOT ENTITLED TO REFUND. THE APPELLANTS APPEAL TO THE TRIBUNAL WAS DISPOSED OF BY THE ORDER WHICH IS NOW IMPUGNED BEFORE US. THE TRIBUNAL DID NOT GO INTO THE FACTS OF THE CASE BUT REJECTED THE APPELLANTS APPEAL ON THE PRELIMINARY GROUND THAT THE APPLICATION FOR REFUND WAS NOT MAINTAINABLE. THE REASONING GIVEN BY THE TRIBUNAL WAS THAT THIS COURT IN THE DECISION MAFATLAL INDUSTRIES LTD. V. UNION OF INDIA1, SCC PARA 108(IV) HAD HELD THAT THE ASSESSEE COULD NOT RELY UPON THE DECISION IN ANOTHER ASSESSEES CASE FOR THE PURPOSES OF APPLYING FOR REFUND. IT WOULD HAVE TO OBTAIN A FINAL ORDER IN ITS OWN PROCEEDINGS. IT WAS, THEREFORE, HELD THAT SINCE THE ISSUE REGARDING THE FINAL APPROVAL OF THE CLASSIFICATION LIST WAS OPEN IN THAT THE FURTHER APPEALS FROM THE DECISION OF THE DEPARTMENTAL AUTHORITIES WERE PENDING, THE APPLICATION FOR REFUND COULD NOT BE ENTERTAINED. ULTIMATELY, THIS COURT HAS ON 28-8-2003, IN THE ASSESSEES OWN CASE DECIDED THAT THE ASSESSEE WAS RIGHT ALL ALONG AND THAT THE DUTY WAS IN FACT LEVIABLE ON THE BASIS THAT THE APPELLANTS PRODUCTS WERE CLASSIFIABLE UNDER TARIFF SUB-HEADING 2404.60 AND NOT 2404.50 WHICH HAD BEEN PAID BY IT UNDER PROTEST.

4. THE APPELLANT HAS RAISED TWO ISSUES PRIMARILY BEFORE US. THE FIRST IS THAT THE TRIBUNAL HAD MISCONSTRUED PARAGRAPH 108(IV) OF THE DECISION OF THIS COURT IN MAFATLAL INDUSTRIES1 AND THAT PARAGRAPH DID NOT IN ANY WAY PRECLUDE AN APPLICATION FOR REFUND BEING MADE IN RESPECT OF DUTIES PAID UNDER PROTEST. THE SECOND SUBMISSION IS THAT IN ANY EVENT THIS COURT IN SINKHAI SYNTHETICS & CHEMICALS (P) LTD. V. CCE2 HAS HELD THAT SECTIONS 11-A AND 11-B DID NOT APPLY TO DUTY PAID UNDER PROTEST.

5. AS FAR AS THE FIRST SUBMISSION IS CONCERNED, WE ARE OF THE VIEW THAT THE TRIBUNALS APPRECIATION OF THE RELEVANT PARAGRAPH IN MAFATLAL INDUSTRIES1 WAS CORRECT. THE "CAUSE OF ACTION" OF THE APPELLANT WOULD ARISE ONLY AFTER THE FINAL DISPUTE REGARDING THE CLASSIFICATION LIST HAD BEEN SETTLED BY THIS COURT. THAT WAS DONE AS RECENTLY AS ON 28-8-2003. THE APPLICATION FOR REFUND BY THE APPELLANT WAS, THEREFORE, PREMATURE. WE HAVE NOTED THE PROVISO TO SUB-SECTION (1) OF SECTION 11-B WHICH SAYS THAT THE PERIOD OF LIMITATION OF ONE YEAR PRESCRIBED UNDER SUB-SECTION (1) WILL NOT APPLY IN CASE DUTIES ARE PAID UNDER PROTEST. THE QUESTION THEN IS FROM WHICH DATE WILL THE PERIOD OF LIMITATION START TO RUN? IT APPEARS ON THE BASIS OF THE PARAGRAPH OF MAFATLAL INDUSTRIES1 DECISION WHICH HAS BEEN RELIED UPON BY THE TRIBUNAL IT WOULD HAVE TO BE FROM THE FINAL DECISION IN THE ASSESSEES OWN CASE.

6. HOWEVER, AS FAR AS THE SECOND SUBM