2008 (6) TMI 489

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....ainst the sugar cleared by them as per Notification No. 35/76 and read with Notification No. 210/73. The Commissioner (Appeals) while allowing the appeal filed by the respondents against the order-in-original that rejected refund claim held as under :- "During the year J976-77 the appellant have produced the total 77,231 quintals of Sugar. The remaining quantity of sugar i.e. 65% 26,138, quintals of sugar was cleared by the appellant as free sale at the normal rule of Central Excise duty 37.5 Basic and 7.5% additional duty. Notification No.35/76 allows the concession on the sugar produced by eligible factories in excess of 35% of their production in a sugar year but the proviso to this notification clearly state that nothing contained....

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....ve been misguided to approach for reprieve by their advocate appears to be genuine. I am inclined to consider the order of the Asst. Collector as bad in law and admit the appeal with consequential relief." 3. Ld. JDR submits that the Commissioner (Appeals) has not considered the aspects of unjust enrichment before allowing the refund claim of the respondents. It is his submission that the question of unjust enrichment has to be satisfied by the respondents before they are eligible for the refund. 4. Ld. Counsel submits that the question of unjust enrichment was not at all raised at any level of the proceedings. It is his submission that the said question cannot be raised at this juncture. 5. Considered the submission....

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....ng proceedings notwithstanding the fact that the duty may have been refunded to the petitioner/plaintiff pending the proceedings or under the orders of the Court/Tribunal Authority or otherwise. It must be held that Union of India v. Jain Spinners and UOI v. ITC (1993 supp (4) SCC 326 have been correctly decided. It is. of course obvious that where the refund proceedings have finally terminated ~ in the sense that the appeal period has also expired before the commencement of the 1991 (amendment) Act (September 19, 1991) they cannot be re-opened and/or governed by Section 11B(3) (as amended by the 1991 (amendment) Act)." 8. It would be seen from the above reproduced portion that provisions of Section 11B after amendment will apply to....