2005 (5) TMI 394

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..... t. The original authority, in an order dated 9-11-84 adjudicated this dispute in favour of the assessee classifying the goods under Tariff Item No. 68 of the erstwhile Central Excise Tariff and rejected the classification proposed by the department under Tariff Item No. 61. On the basis of this decision of the adjudicating authority, the assessee filed a claim for refund of duty of Rs. 12,76,763/- paid for the aforesaid period. This refund claim was allowed by the original authority as per order dated 26-6-85. Against the orders passed by the said authority on 9-11-84 and 26-6-85, the department preferred appeal to the Collector (Appeals) and the same was allowed as per Order-in-Appeal No. 102/86, dated 24-7-86, wherein the subject product .....

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..... option other than granting them the relief consequential to the said order. The bar of unjust enrichment was not applicable to the said refund claim which had been filed and allowed prior to September 1991 inasmuch as the amendments incorporating the doctrine of unjust enrichment under Section 11B of the Act were effective only from 8th September 1991. In this connection, ld. Counsel relied on the Tribunal s decision in the case of Dalmia Cements (Bharat) Ltd. v. CCE - 2001 (137) E.L.T. 493 (Tri. - Chennai), wherein it was found that the refund claim had been finally settled before amendment of Section 11B and accordingly it was held that the doctrine of unjust enrichment was not applicable to the case. 3. Ld. SDR, on the other hand, sub .....

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..... e applicable to the appellant s refund claim. The Tribunal s decision in Dalmia Cements (Bharat) Ltd. (supra) cited by ld. Counsel does not appear to be supportive of the appellant s case. What was held in that case by the Tribunal relying on the Apex Court s ruling in Mafatlal Industries (supra) was that the doctrine of unjust enrichment would not apply to matters which had reached finally prior to the date with effect from which the said doctrine was incorporated in Section 11B. In the instant case, as we have already noted, the refund claim reached finality only on 27-10-95 and therefore the above doctrine is applicable. The question now is whether the appellant succeeded in getting over the bar of unjust enrichment. It appears from the .....

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