2007 (8) TMI 620 - AT - Central Excise

Summary

Issues involved: Whether refund applications filed before finalization of provisional assessments are barred by limitation and whether unjust enrichment angle was adequately considered.

Issue 1: Refund applications filed before finalization of provisional assessments

The main issue in the present appeal was whether the refund applications filed before the finalization of provisional assessments on 16-10-2000 should be considered as barred by limitation. The Commissioner (Appeals) held that the first refund application, even though filed before finalization of assessment, was within time. The Deputy Commissioner passed another order on 11-6-2002 finalizing the assessments, and a subsequent application was filed by the respondent on 19-6-2002, within a short period. The Revenue contended that both assessment orders had the same meaning and limitation should start running from the earlier order on 16-10-2000. However, the Tribunal disagreed with this argument, stating that the refund applications were filed within limitation from the date of the subsequent order on 11-6-2002, and therefore not barred by limitation.

Issue 2: Consideration of unjust enrichment angle

The Commissioner (Appeals) granted relief on the ground that the refund applications were filed before the finalization and passing of the first order on 16-10-2000, even though they were returned as premature. However, the Revenue did not challenge this finding. While rejecting the Revenue's appeals on the ground of limitation, the Tribunal agreed with the Senior Departmental Representative (SDR) that the Commissioner (Appeals) did not adequately consider the unjust enrichment angle. It was noted that every refund should be examined from the unjust enrichment perspective. Therefore, the Tribunal set aside the impugned order and remanded the matter to the Assistant Commissioner for a thorough examination of unjust enrichment.