JUDGMENT Ranjan Gogoi, J. 1. Heard Sri D.C. Chakraborty, learned Counsel for the Appellant and Sri G.N. Sahewalla, learned senior counsel for the Respondent-Assessee. 2. This appeal under Section 35G of the Central Excise and Salt Act, 1944 is directed against an order dated 24.5.2004 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal') holding that the Respondent-Assessee cannot be denied refund on the ground of unjust enrichment. On the basis of the said finding the learned tribunal had thought it proper to reverse the order dated 29.9.2003 passed by the Commissioner of Central Excise (Appeals), Guwahati rejecting the claim for refund made by the Respondent. 3. The facts necessary for the present adjudication may now be briefly noticed; The Respondent-Assessee is a manufacturer of urea having a unit located in Shahjahanpur in the State of Uttar Pradesh. In the process of manufacture of urea, ammonia which is also manufactured by the Respondent, is captively consumed as one of the inputs. Another input i.e. naptha is produced by the Respondent from the Bharat Petroleum Corporation Limited. The Respondent applied for concessional rate of duty on naptha used for manufacture of urea in its plant at Shahajahanpur which, however, was rejected by the jurisdictional Assistant Commissioner of Central Excise by an order dated 8.7.97. Against the said order, the Respondent filed an appeal before the Commissioner of Central Excise (Appeals), Allahabad which was allowed by order dated 30.10.98 holding that the Appellant (Respondent herein) was eligible for concessional rate of duty with effect from 12.1.96. The Respondent, thereafter, claimed refund of excise duty paid on naptha during the period 1996-97, 1997-98 and 1998-99. The refund application was initially filed on 7.12.98 before the Assistant Commissioner of Central Excise, Sitapur. However, the said authority took the view that the refund application had to be filed before the jurisdictional authority at the place where duty had been paid. Consequently, on 16.3.99, the Respondent withdrew its application for refund filed before the Assistant Commissioner of Central Excise, Sitapur and, thereafter, filed an application before the Assistant Commissioner of Central Excise, Dhubri on 17.5.99. By order dated 31.12.2002, the Assistant Commissioner of Central Excise, Dhubri rejected the refund claim of the Respondent. Aggrieved, the Respondent filed an appeal before the Commissioner of Central Excise (Appeals), Guwahati. By order dated 31.12.2002, the Assistant Commissioner of Central Excise, Dhubri rejected the refund claim of the Respondent. Aggrieved, the Respondent filed an appeal before the Commissioner of Central Excise (Appeals), Guwahati. The said appeal was disposed of by an order dated 29.9.2003 affirming the order of rejection passed by the Assistant Commissioner of Central Excise, Dhubri. A reading of the appellate order of the Commissioner of Central Excise (Appeals), Guwahati would go to show that the rejection of the refund claim of the Respondent was reiterated on the following three principal grounds: (i) The payment of duty by the Respondent during the period in question was not under protest in the absence of any specific provision of law under which the Respondent could be treated to have paid duty under protest; (ii) The refund application was barred by limitation; (iii) The refund claim was hit by the doctrine of unjust enrichment. Against the aforesaid order dated 29.9.2003 passed by the Commissioner of Central Excise (Appeals), Guwahati, the Respondent filed a further appeal before the learned tribunal which having been answered in the manner indicated above, the Revenue is before this Court by means of the present appeal under Section 35G of the Central Excise and Salt Act. 4. Two contentions in the main have been advanced at the hearing by Sri D.C. Chakraborty, learned Counsel for the Appellant. Sri Chakraborty has contended that the application for refund not having been filed within six months from the date of receipt of the order of the Commissioner (Appeals) by the Respondent i.e. 5.11.98, the appeal is barred by limitation. Additionally, Sri Chakraborty has argued that the finding recorded by the learned Tribunal that the price of urea was fixed by the Ministry of Chemicals and Fertilizers by taking into account only the concessional rate of duty of naptha, which had formed the basis of the finding of the learned Tribunal that the doctrine of unjust enrichment has no application to the present case, is not supported by any discussion or reasons. In this regard, Sri Chakraborty has taken the Court through the various paragraphs of the Memorandum of Appeal wherein the Appellant has sought to explain the concept of retention price and net realization price. In this regard, Sri Chakraborty has taken the Court through the various paragraphs of the Memorandum of Appeal wherein the Appellant has sought to explain the concept of retention price and net realization price. Furthermore, the averments made in the Memorandum of Appeal to show that the aforesaid finding of the learned Tribunal was without any basis have also been placed before the Court. 5. Controverting the submissions advanced by Sri Chakraborty, learned Counsel for the Appellant, Sri G.N. Sahewalla, learned Counsel for the Respondent has submitted that the payment of duty by the Respondent during the period when the appeal filed by the Respondent in the matter of its entitlement to concessional rate of duty on naptha was pending, is by itself payment of duty under protest. Sri Sahewalla has further argued that in any event the necessary refund claim having been filed before the Assistant Commissioner of Central Excise, Sitapur on 7.12.98 and the same having been withdrawn to be re-filed before the Assistant Commissioner of Central Excise, Dhubri following the decision of the initial authority that the refund claim should have been filed before the Central Excise authority at the place where duty was paid are sufficient facts which would go to show that the refund claim of the Respondent was not barred by limitation. 6. In so far as the second ground urged by Sri Chakraborty, learned Counsel for the Appellant is concerned, Sri Sahewalla has submitted that in para 6 of the judgment under appeal there is an elaborate discussion for the findings/conclusions recorded by the learned Tribunal. In this regard, Sri Sahewalla has placed before the Court a letter dated 20.5.99 of the Fertilizer Industry Coordination Committee (FICC) which has been relied upon by the learned Tribunal in coming to the conclusion that the retention price of urea was worked out by the FICC exclusive of central excise duty. If that be so, according to Sri Sahewalla, the Respondent having paid duty on naptha and the retention price having been worked out exclusive of excise duty, it would be entitled to refund of such duty as the element of duty could not have been passed on by the Respondent to the purchasers at the time of sale of urea. In support, Sri Sahewalla has placed before the Court the decision of the Apex Court in the case of State of Rajasthan and Ors. In support, Sri Sahewalla has placed before the Court the decision of the Apex Court in the case of State of Rajasthan and Ors. v. Hindustan Copper Ltd. reported in (1998) 9 SCC 708 which decision has also been referred to by the learned Tribunal in para 10 of the impugned order. 7. We have considered the rival submissions advanced on behalf of the parties. In the present case, the Respondent by virtue of rejection of its claim for concessional rate of duty became obliged to pay duty on naptha used in the manufacture of urea which it continued to do so until its entitlement for concessional rate of duty was determined by the Commissioner (Appeals), Allahabad on 30.10.98. In such circumstances, the duty paid by the Respondent during the aforesaid period has to be understood to be duty paid under protest. That apart, from the materials on record it is clear and evident that the refund claim of the Respondent was initially filed on 7.12.98 before the Assistant Commissioner of Central Excise, Sitapur who took the view that the said refund claim should be filed before the authority having jurisdiction over the area where duty was actually paid. In terms of the said order of the Assistant Commissioner of Central Excise, Sitapur, the Respondent re-filed the refund claim before the Assistant Commissioner of Central Excise, Dhubri on 17.5.99. In the above circumstances, even if we are to hold that the period of limitation prescribed by the Act has any application to the present case, the refund claim of the Respondent having been filed within the said period of limitation before the Assistant Commissioner of Central Excise, Sitapur, the same cannot be understood to be barred by limitation. 8. Coming to the second issue in the case, we find that in para 10 of the impugned order the learned Tribunal has recorded that urea fertilizers' price are controlled by the Ministry of Chemicals and Fertilizers and that in fixing such price the Ministry takes into account only the concessional rate of duty on the input i.e. naptha. 8. Coming to the second issue in the case, we find that in para 10 of the impugned order the learned Tribunal has recorded that urea fertilizers' price are controlled by the Ministry of Chemicals and Fertilizers and that in fixing such price the Ministry takes into account only the concessional rate of duty on the input i.e. naptha. The discussion in para 6 of the order of the learned Tribunal indicates that in coming to the aforesaid conclusion, the learned Tribunal relied on the letter dated 20.5.99 (wrongly referred to as 25.9.99) of the Fertilizer Industry Co-ordination Committee (FICC) which, on due perusal, indicates that the retention price of urea at Shahjahanpur Unit of the Respondent had been worked out by the FICC exclusive of excise duty. We may take further notice of the fact that the aforesaid letter dated 20.5.99 was specifically in respect of the Respondent Assessee. The letter dated 20.5.99 was on the record of the appeal before the learned Tribunal. No contrary material was placed by the Appellant before the Tribunal to enable it to come to any other conclusion. As the finding of the learned Tribunal that the price of urea in the Shahjahanpur Unit of the Respondent was worked out exclusive of excise duty had been reached on due consideration of the materials before the learned Tribunal, we are unable to accept the argument made on behalf of the Appellant that the said finding has been recorded without any discussion or consideration of the materials on record. On the contrary, we are, of the view that the said finding recorded by the learned Tribunal does not suffer from the vice alleged by the Appellant so as to make the same unacceptable to us. If the said finding is to be accepted, which we are inclined to do, the conclusion is obvious. The Respondent paid duty on naptha; yet, it had to sell urea at a price exclusive of such duty. Subsequently, when the entitlement of the Respondent for concessional rate of duty was determined by the Commissioner (Appeals) by order dated 30.10.98, it became eligible for the refund of the duty paid. The Respondent paid duty on naptha; yet, it had to sell urea at a price exclusive of such duty. Subsequently, when the entitlement of the Respondent for concessional rate of duty was determined by the Commissioner (Appeals) by order dated 30.10.98, it became eligible for the refund of the duty paid. Such entitlement would not be hit by the doctrine of unjust enrichment as clearly the Respondent could not have passed on the burden of the duty element to the purchasers of urea in view of the price of urea being fixed exclusive of the duty element. The judgment of the Apex Court in State of Rajasthan and Ors. v. Hindustan Copper Ltd. (supra) referred to by the learned Tribunal and relied upon by the Respondent lays down the same principle, though in the context of certain other items of input and final product. 9. Consequently and in the light of the foregoing discussions, we arrive at the conclusion that the appeal filed by the Revenue is without any merit and/or substance. It is, accordingly, dismissed. The impugned order dated 24.5.2004 passed by the learned Tribunal is hereby affirmed.