TaxTMI 
TaxTMI 
2010 (8) TMI 914
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.... March, 1998, the Deputy Commissioner passed order, dated 16-1-2006, wherein short-payment of duty of Rs. 83,37,896.17 was found in respect of certain clearances and also excess payment of duty of Rs. 13,82,22,628.76 was found in respect of other clearances and the latter amount was ordered to be credited to the Consumer Welfare Fund (CWF) on the ground of unjust enrichment. The order was passed under Rule 7 of the Central Excise Rules, 2002 read with Section 11B of the Central Excise Act. Before the original authority, the assessee had sought adjustment of the short-paid duty against the excess payment of duty and for refund of the net amount of duty paid in excess. This plea was rejected on the ground that the incidence of duty had alread....
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.... amended provisions of law. As per the amended provisions, any excess amount of duty paid by the assessee could be refunded to them only in terms of Section 11B(2) of the Act, which would mean that the doctrine of unjust enrichment is applicable to the facts of this case. In this connection, the learned JCDR has heavily relied on the Hon'ble High Court's judgment in Commissioner v. Standard Drum & Barrel Mfg. Co., 2006 (199) E.L.T. 590 (Bom.) as also on the Tribunal's order in Gujarat State Fertilizers & Chemicals Ltd. v. Commissioner, 2005 (188) E.L.T. 92 (Tri.-Mumbai). According to the learned JCDR the substantive issue in the present case is squarely covered by the High Court's decision cited above. 4. Learned counsel for the res....
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.... 1998, although the assessments were finalized on 14th October, 2005 by the Asst. Commissioner?" According to the learned counsel, this Bench should wait for the Larger Bench decision. 5. At the outset, we have got to reject the suggestion to wait for the Larger Bench decision inasmuch as we are bound by the remand order of the Hon'ble Supreme Court, whereby their Lordships directed time-bound disposal of the case. Though, the time prescribed by the Apex Court ran out long before owing to administrative and other reasons beyond the control of this Bench, we have got to take up the case for final disposal, now that both the sides are before us for the first time since the above remand, with their respective view points. 6.&emsp....
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....The Hon'ble High Court was dealing with the Revenue's appeal which was filed against the Tribunal's order. The Hon'ble High Court, after considering the relevant amendments to Section 11B and Rule 9B, and the Apex Court's decisions in Mafatlal Industries case and the case of Commissioner v. T.V.S. Suzuki Ltd., - 2003 (156) E.L.T. 161 (S.C.), held that the assessing officer was justified in holding that the refund arising out of finalisation of provisional assessment on 8-6-1999 was governed by the principle of unjust enrichment contained in Section 11B of the Central Excise Act as amended. Learned counsel has attempted a distinction of Standard Drum & Barrel Mfg. Co. case (supra). According to him, the Hon'ble High Court's ruling cannot be ....
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.... shall be the 'relevant date' for the purpose of a claim for refund. It may be true that the present respondent did not file a formal refund claim. But this fact would not detract from the obligation cast on the assessing authority by the proviso (added with effect from 25-6-1999) to sub-rule (5) of Rule 9B of the Central Excise Rules, 1944. This proviso reads thus : "Provided that, if 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." Obviously, this provision contains a mandate to the assessing authority and accordingly the said authority is liable to decide, before effecting any refund of any excess duty to t....