TaxTMI 
TaxTMI 
2007 (9) TMI 504
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....njust enrichment is applicable on finalisation of provisional assessment made under rule 9B of the erstwhile Central Excise Rules, 1944 (in short "Rules 1944"), refund of duty paid on 1986 to 1990, much before amendment of Rule 9B on 25-6-1999, (when Section 11B including unjust enrichment was made applicable to Rule 9B provisional assessment cases). The ld. Advocate on behalf of the respondents submits that the Commissioner (Appeals) rightly allowed the appeal of the respondent following the decision of the Hon'ble Supreme Court in the case of CCE v. Allied Photographics Inds. Ltd. - 2004 (166) E.L.T. 3 (S.C.), wherein, it was held that the doctrine of unjust enrichment did not apply to provisional assessment cases pertaining to the period....
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....uffer loss." 7. The ld. Advocate contended that the present case is squarely covered by the decision of the Supreme Court in the case of T.V.S. Suzuki Ltd. (supra) particularly on the issue of provisional assessment and, therefore, the aforesaid decision is not applicable herein. I find that the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd., (supra) also followed the decision of nine judges bench in the case of Mafatlal Industries Ltd. & Ors. v. Union of India - 1997 (89) E.L.T. 247 (S.C.). In view of the aforesaid finding of the Hon'ble Supreme Court, in the Sahakari Khand Udyog Mandal Ltd., the matter is liable to be examined afresh in respect of unjust enrichment. At this stage, the ld. Advocate fairly submi....
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....aused injustice to the respondent. This is an error apparent on the face of the record and requires to be rectified by the Hon'ble Tribunal. 4. Learned Advocate on behalf of the respondents at the time of hearing referred the above said case laws of the Hon'ble Supreme Court. In addition to that, he submits that the Hon'ble High Court of Bombay in the case of CCE, Mumbai-II v. Standard Drum & Barrel Mfg. Co. reported in 2006 (199) E.L.T. 590 (Bom.) decided the similar issue in favour of the assessee. He also submits that the Tribunal in the case of CC, Ahmedabad v. Hindalco Industries Ltd. reported in 2006 (199) E.L.T. 481 (Tri-Mumbai) also held in favour of the assessee on the similar issue. He submits that in this case, the Tribunal....
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.... of the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Limited came in 2005. In this case, it has been observed by the Hon'ble Supreme Court that doctrine of unjust enrichment is based on equity and therefore, irrespective of applicability of section 11B of the Act, the doctrine can be invoked. It has also been observed that in absence of statutory provisions the person cannot claim or retain undue benefit. It is seen that the Tribunal while passing the final order followed the said decision. The learned Advocate at the time of hearing of the present application relied upon the decision of the single member bench of the Tribunal in the case of Hindalco Industries Limited (supra) on the same issue, held as under :- "As reg....
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.... principles of unjust enrichment contained in Section 11B of the Excise Act as amended by Act 21 of 1998 and the Tribunal erred in holding to the contrary. In this view of the matter, it is not necessary to go into the question as to whether the decision of the Apex Court in the case of Sahakari Khand Udyog Mandal Limited (supra) is applicable to the facts of the present case, or not." 8. With regard to the scope of rectification of mistake of Final Order, the Hon'ble Supreme Court in the case of CCE, Calcutta v. A.S.C.U. Ltd. reported in 2003 (151) E.L.T. 481 (S.C.) held as under :- "7. This Court has in two judgments viz. T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay v. M/s Volkart Brothers, Bombay [1971 (2) SCC ....
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....from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used". 9. It is seen that in the present case, the Tribunal by Final Order dated 19-1-2007 followed the decision of the Hon'ble Supreme Court in the case of Sahkari Khand Udyog Ltd., (supra). So, it is apparent on the face of record that the final order of the Tribunal is not based on irrelevant material and in other words it is based on the decision of the Hon'ble Supreme Court. The contention of the learned Advocate to decide the matter on the basis of other decision of the Hon'ble Supreme Court amounts to review of the Final Order, which is not permissible under the law. So, the application of th....