2018 (9) TMI 814

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.... facts of the case, after filtering out unnecessary details, are that the respondent herein manufactured cigarettes for M/s ITC on job work basis during period from August, 1979 to September, 1982. The Respondent filed price lists for these goods claiming normal sale price at the factory gate and claiming abatement of Post Manufacturing Expenses (PME). The price lists were provisionally approved under Rule 9B of Central Excise Rules, 1944, pending finalization of post manufacturing expenses. The Original Authority vide Order No. 03/2009 dated 20.03.2009, finalized the price lists as per the judgment of the Hon'ble Supreme Court in the case of Ujagar Prints Pvt. Ltd., [1989 (39) ELT 493 (S.C.)] applicable for job work. He held that the norma....

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....fter a period of 13 years which is not permissible. Therefore, the Order-in-Original must be treated as non-est. The Learned Commissioner (Appeals) had failed to consider these aspects in the impugned order. The Learned Commissioner (Appeals) had rejected the Department's contention with regard to the valuation as well as the assessee's reply in their memorandum of cross objections regarding to nonapplicability of unjust enrichment. 5. No appeal has been filed by the assessee before this Bench. However, they have filed memorandum of cross objections in which they have raised the issue of inapplicability of unjust enrichment for the relevant period. The memorandum of cross objections filed by the assessee before us has been accepted has an ....

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....e period August, 1979 to September, 1982. However, the assessments were finalized subsequent to this date in 2009. The question is whether the principles of unjust enrichment under Section 11B apply to such cases. The constitutional Bench of Apex Court in the case of Mafatlal Industries Ltd., [1997 (89) ELT 247 (S.C.)] it was held that the bar of unjust enrichment would not apply to refunds arising on finalization of provisional assessment for the period prior to the introduction of the concept of unjust enrichment in Section 11B. Therefore, the assessee herein is entitled to refund as consequence of finalization of provisional assessment. The third question to be decided is whether an amount of Rs. 25 lakhs which is claimed by the assessee....