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TMI Blog2008 (9) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... Joy Kumari Chander, learned JCDR appeared for the revenue. 3. The appellant filed a refund claim for the refund of excess duty paid over and above the rate of duty as per Notification No. 108/78-C.E., dated 28-4-1978. The Original Authority issued show cause notice for rejection of the refund claim on grounds of unjust enrichment. In fact the refund was credited to the Consumer Welfare Fund under Section 11B(2). The appellants approached the Commissioner (A). The Commissioner (A) relying on the decision of the Hon'ble Apex Court in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE & C -2005 (181) E.L.T. 328 (S.C.), upheld the order of the lower authority and rejected the appeal. Hence, the appellants have come before this Tribunal f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim pertains to the period from 1-5-1978 to 15-8-1978. The provisions relating to unjust enrichment were enacted only in the year 1991. Initially, the department disputed the entitlement of the appellant for the benefit of the said Notification. After protracted litigation, the appellant got a favourable order from the Tribunal in the year 1987. It is true that the issue of excess amount had been settled in 1978 or in 1987 when the CESTAT decided the case in their favour, the provisions of unjust enrichment would not have come in the way of grant of such refund. While appreciating the above point urged by the learned advocate, we have to state that this Tribunal is bound by the decision of the Hon'ble Supreme Court rendered in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ..... ...... 48. From the above discussion, it is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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