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TMI Blog2004 (1) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue appeal is directed against the impugned order-in-appeal whereby the respondents claim of refund of Rs. 4,00,185/- was allowed by the Commissioner (Appeals). In the impugned order-in-appeal, the learned Commissioner has proceeded to accept the appeal by holding as under :- amended provisions of Section 11B cannot be applied to the refund claims, which have been adjudicated upon by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Supreme Court in the case of Mafatlal v. U.O.I. reported in 1997 (89) E.L.T. 247, wherein, the Supreme Court in its detailed judgment has held that, all claims of refund of Central Excise duty have to be preferred and adjudicated upon in terms of Section 11B of the Central Excise Act, 1944, subject to claimant establishing that burden of duty has not been passed on to the 3rd party. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (2) the applicability of unjust enrichment. Section 11B itself provides that, where duty is paid under protest, no limitation shall apply for claiming the refunds. It is nowhere provided therein that the other provisions, namely applicability of unjust enrichment is waived. Once the amount claimed is held classifiable to be a claim of refund of duty, then it would have to be claimed in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, in the case of Birla Corporation Ltd. Anr, the issue was that of finalisation of provisional assessment. Otherwise the non-applicability of provisions of Section 11B relating to unjust enrichment cannot be visualized to the facts involved in the case of Mafatlal Industries. 6. Accordingly, I hold that in the instant case there being no evidence that the refund claim generated as a result ..... X X X X Extracts X X X X X X X X Extracts X X X X
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