2008 (9) TMI 253

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....eal is against a similar decision relating to an amount of duty of Rs. 23,961/-. Certain provisional assessments of the fiscal 1999-2000 were finalised by the Assistant Commissioner as per order dated 31-3-2001, whereupon excess duty payment of Rs.1,00,261/- was found and this amount was credited to the Consumer Welfare Fund. Similarly, for the period April to June, 2000, provisional assessments were finalised by the Assistant Commissioner as per order dated 31-12-2001 whereby the excess duty of Rs. 23,961 /- found to have been paid by the assessee was credited to the Consumer Welfare Fund. The appeals filed by the assessee against the said orders of the Assistant Commissioner were rejected by the Commissioner (Appeals). Hence the present a....

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....tion of provisional assessments for periods subsequent to 1-8-1998, the date on which Section 11B of the Central Excise Act was amended to make the date of finalisation of provisional assessment the relevant date for the purpose of filing of a claim for refund of excess duty paid by the assessee. However, it is fairly conceded that the crediting of excess amounts of duty to the Consumer Welfare Fund was summarily done by the original authority at the time of finalisation of provisional assessments, without giving an opportunity to the assessee to adduce evidence against the bar of unjust enrichment. 3. After giving careful consideration to the submissions, we note that, barring a small part of the amount of excess duty paid by the assess....

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....his ruling after considering inter alia the Apex Court's judgment in the case of Commissioner of Central Excise, Chennai v. TVS Suzuki Ltd. [2003 (156) E.L.T. 161 (S.C.)] and Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)]. No decision to the contra rendered by the jurisdictional High Court has been cited before us. The view taken by the Bombay High Court has, therefore, to be followed. Accordingly we hold that, as the entire claim for refund relates to excess duty paid for the period after 1-8-1998, the doctrine of unjust enrichment is applicable to this case. However, as rightly pointed out by both sides, the assessee was not given an opportunity to adduce evidence against the bar ....