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TMI Blog2011 (6) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Sparkler Ceramics Pvt. Ltd. Vs. Commissioner of C. Ex.[2011 (1) TMI 320 - CESTAT, MUMBAI] & the refund under Notification No. 41/2007-ST dated 6.10.2007 wherein it was held that question of unjust enrichment will not be applicable to the case which involved export of goods - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) allowed the refund claim on the ground that this was not the ground taken in the show-cause notice. 4. The respondent is that as per proviso to Section 11 B(2) proviso (a) to Sub-section (2) to Section 11B of Central Excise Act, 1944 itself excluded the rebate of duty from the purview of doctrine of unjust enrichment. They have also placed reliance of Tribunal decision in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said goods. The assessee in the instant case did not avail the exemption but applied for refund. The contention is that as soon as the question of refund arises it is governed by Section 11B of Central Excise Act, 1944 including clause of unjust enrichment made applicable to service tax matters under Section 83 of Chapter V of the Finance Act, 1994. The contention is that the respondents have char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in the case of Sparkler Ceramics Pvt. Ltd (supra) held that question of unjust enrichment will not be applicable to this case as it involves export of goods. The Ld. Commissioner (Appeals) has given clear and cogent finding and I do not find any reason to interfere with the same. The Ld. Commissioner (Appeals) order is upheld and Revenue's appeal is dismissed.
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