2006 (4) TMI 385

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....004) filed by the Revenue against the Order-in-Appeal No. 6/2004, dated 6-1-2004, passed by the Commissioner of Customs (Appeals), Bangalore. 2. Shri B. Venugopal, the learned Advocate appeared for M/s. Microland Ltd. and Shri Ganesh Havanur, Authorised Representative (SDR) appeared for the Revenue. C/123/2004 3. The party filed a refund claim for Customs duty amounting to Rs. 12,35,122/- consequent to finalization of provisional assessment of the goods imported from the related party. The Deputy Commissioner in his order dated 17-7-2002 sanctioned the refund but appropriated the same towards the duty demand under the Adjudication Orders No. 334/2001, dated 29-11-2001 and 359/2001, dated 29-11-2001, passed by the Deputy C....

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....vocate fairly conceded that while granting refund, unjust enrichment aspect has to be examined. 5. The learned SDR also pointed out that the decisions relating to the Central Excise to the effect that in respect of finalization of provisional assessment, the unjust enrichment is not applicable, cannot be applied to the Customs cases blindly. In any case, both the parties agreed that the matter has to be remanded to the Original authority for de novo decision. 6. We have gone through the records of the case carefully. In this case, the refund sanctioned had been adjusted against confirmed demands which were not challenged before the appellate authority. The contention of the learned Advocate that the refund cannot be adjusted....

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.... order of the Commissioner (Appeals) on the following grounds :- (i) The decision relied on by the Commissioner (Appeals) to come to a conclusion that for refund arising out of finalization of provisional assessment, unjust enrichment is not applicable relates to Central Excise. In Central Excise law, there was a lacuna and after the Apex Court decision in the case of M/s. Mafatlal Industries [1997 (89) E.L.T. 247 (S.C.)], this lacuna has been remedied by the Legislature. By issue of Notification No. 45/99-CE (NT), dated 25-6-1999, a proviso was inserted after sub-rule (5) of the Rule 9B to Central Excise Rules and consequently, the refund arising on finalization of provisional assessment subject to the procedure under Section 11B (2). I....