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TMI Blog2010 (12) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... doctrine of unjust enrichment is applicable to all the cases of refunds irrespective of whether the provision of Section 11B of the Act are applicable or not, the refund claim, in question, would be subject to the principle of unjust enrichment- Appeal dismissed - E/289 of 2006 - 877/2010-EX(PB) - Dated:- 9-12-2010 - Shri Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri S. Yadav, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersed the Assistant Commissioners order sanctioning the refund claim for the period from 9/11/89 to 5/3/90 on the ground of unjust enrichment holding that for this period the principle of unjust enrichment would apply. The present appeal has been filed against the portion of the Commissioner (Appeals)s order rejecting the refund claim for the period from9/11/89 to 5/3/90 on the ground of unjust en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded that in view of the judgment of Honrable Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. vs. CCE Cus. reported in 2005 (181) E.L.T. 328 (S.C.), wherein it was held that doctrine of unjust enrichment is based on equity and, therefore, irrespective of the applicability of Section 11B of Central Excise Act 1944, it can be invoked to deny the benefit to which a person is not entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e doctrine of unjust enrichment would be attracted and that payment of duty under protest cannot be equated with provisional assessment. It has not been explained by Shri Yadav as to how this judgment helps the Appellant in this case as the assessment were not provisional during 9/11/89 to 5/3/90 periods. 3.2 As regards the Appellants plea that since no show cause notice for recovery of erroneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreover Honrable Supreme Court in its judgment in case of CCE vs. Re-rolling Mills (supra), which in turn, is based on its judgment in case of Union of India vs. Jain Sudh Vanaspati Ltd. reported in 1996 (86) E.L.T. 460 (S.C.) had held that when an assessment order has been obtained by fraudulent means, resulting in short levy of duty, for recovery of duty the assessment order is not required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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