1999 (7) TMI 449

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.... per : S.L. Peeran, Member (J)]. -  This is a Revenue's appeal against Order-in-Appeal No. 338/98, dated 19-6-1998 passed by Commissioner (Appeals), Chennai holding that the provisions of unjust enrichment under Section 11B cannot be invoked in the present case for the purpose of refund as assessments were still provisional under Rule 9B of the C.E. Rules. While passing this order, the Commi....

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....n this appeal does not dispute the fact of provisional assessment. It is only that they are laying a different interpretation to para 95 of the Apex Court's judgment rendered in Mafatlal Industries and he contend that the said paragraph dealing with unjust enrichment does not refer to provisional assessment. 3. As regards the judgment of Needle Industries (India) Ltd. supra rendered by the T....

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....rt in para 95 of Mafatlal Industries case. This paragraph has been clearly extracted in the judgment of Needle Industries (India) Ltd supra. In this para, the Hon'ble Supreme Court has clearly laid down that provisional assessment of unjust enrichment as contemplated under Section 11B would not apply to provisional assessment under Rule 9B. The entire paragraph 95 has been extracted in the judgmen....

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.... in sub-rule (5) of Rule 9B thereof to the effect that even after the finalisation of the provisional assessment under Rule 9B(5), if it is found that an assessee is entitled to a refund, such refund shall not be made to him except in accordance with the procedure established under sub-section (2) of Section 11B of the Act. This only underscores the view of the Hon'ble Tribunal held in Needle Indu....