2012 (3) TMI 37

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....nbsp; For Respondent:  SRI.JOSEPH KODIANTHARA (SR.), SRI.JOY JOSEPH(KOTTAYAM),  SRI.V.ABRAHAM MARKOS,  SRI.MATHEWS K.UTHUPPACHAN,  SRI.BINU MATHEW,  SRI.TERRY V.JAMES, SRI.B.J.JOHN PRAKASH, SRI.TOM THOMAS (KAKKUZHIYIL)   J U D G M E N T   Ramachandran Nair, J   This is an application filed by the Commissioner of Central Excise under Section 35H of the Ce....

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....t succeeded in getting exemption from duty on the input captively consumed. Refund application was subsequently filed on 13.4.1999 which was rejected by the assessing officer and confirmed by the first appellate authority. However on a second appeal by the respondent the Tribunal allowed the claim. It is against this order of the Tribunal, the Commissioner of Central Excise has filed this referenc....

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....anvassed by the respondent's counsel is that unjust enrichment has to be considered with reference to the value of product sold and so much so valuation is involved. We are unable to accept this contention because the specific bar u/s 35H is only with regard to the question of "value of goods for purposes of assessment" which is not the case here. The issue considered and the finding of the Tribun....

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.... by the Tribunal stands reversed by the judgment of the Hon'ble Supreme Court reported in Commissioner of Central Excise, Mumbai v. Allied Photographics India Ltd. 2004 (4) SCC 34 which is true because contrary to the findings of the Tribunal payment of duty under protest by itself does not entitle the assessee for refund. Similar is the position with regard to the payment of duty provisionally wh....