2011 (3) TMI 1788

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....ior to 25­06­99, the provisions of unjust enrichment would not apply in the light of the law declared by the Larger Bench of CESTAT in the matter of : Commissioner of Customs vs. M/s. Hindustan Zinc Ltd.[2009(235) ELT 629(Tri.LB)]1? (ii) Whether in the facts and the circumstances of the case, the impugned Order dated 26.08.09 is sustainable in the eye of law, in view of : CCE, Mumbai­II vs. M/s. Standard Drum & Barrel Mfg. Co.[2006(199) ELT 590 (Bom.)] and, CCE, Mumbai­II Vs. M/s,. Allied Photographic India Ltd. [2004(166) ELT 3 (SC)]?"  We have perused the orders on record with the assistance of learned counsel for the Revenue. Issue pertains to application of principle of unjust enrichment in case of refun....

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....ty cannot be of any assistance to the revenue. Similarly the definition  of the term assessment  under section 2(2) of the Act also cannot help the revenue in light of the specific provisions of Section 18 of the Act which override all other provisions of the Act. The contention that the Court should not permit a person to derive unjust benefit also does not merit acceptance.  The Court can only read the provisions and the statute as they stand, and if necessary, interpret the same but the Court cannot legislate. This is a salutary principle of interpretation.  Furthermore, as noticed hereinbefore, the Apex Court has in no uncertain terms drawn the distinction between making of refund and claiming of refund. The High Cou....