2005 (2) TMI 178

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....e Order No. 11/98, dated 19th February 99. The appellant filed an appeal before the Commissioner. The Commissioner remanded the case to the original Authority vide Order-in-Appeal No. 258, dated 28-4-2000. Against that Order, the appellant came up before the this Tribunal and the Tribunal passed Final Order No. 116 of 2001-A, dated 16-3-2001 [2001 (133) E.L.T. 102 (Tri.)] holding as under : "4. During the relevant period under Section 4 of the Central Excise Act, 1944, assessment was to be made on the wholesale price. In case the sale was in retail, wholesale price was to be worked out after giving the required deduction. Central Board of Excise and Customs under its instruction F. No. 312/1/75-C.X., dated 8-8-1975 advised field formations....

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....t the provisions of unjust enrichment are attracted to the appellant's case and the appellant failed to show that the additional duty amount had not been passed on to the buyers. 3. In the present appeal, the Order impugned is being challenged by both on the question of applicability of the provisions relating to unjust enrichment and whether the appellant had shown that the additional duty amount had not been passed on to the buyers. On the question of applicability of Section 11B (unjust enrichment), it is being pointed out that since the refund applications had been filed before the 1999 amendment of Rule 9B, the provisions relating to unjust enrichment are not applicable. This submission is being made by placing reliance on the judgmen....

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....le to the present case. He has relied on para 95 of the Apex Court judgment in the case of Mafatlal Industries Ltd. v. U.O.I. - 1997 (89) E.L.T. 247 (S.C.). That para is reproduced below : "95. Rule 9B provides for provisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that 'when the duty leviable on the goods is assessed finally in accordance with the provisions of these rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in ex....