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TMI Blog2013 (3) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules no refund shall be made except as provided in sub-section (2). Sub-section (3) of Section 11B is a non-obstante clause whose provisions shall have overriding effect. According to the sub-section (2) of Section 11B, except for the exceptions (a) to (f) mentioned in the proviso to sub-section (2) of Section 11B, in all other cases, the duty amount refundable shall be credited to the Consumer Welfare Fund. Rebate in respect of excess production of sugar during lean season in terms of Notification No. 132/82-C.E. is not mentioned among the exceptions. Clause (d) of proviso to Section 11B(2) covers those cases when the incidence of duty paid by the manufacturer had not been passed on to any other person. Thus, for claiming the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -9-1982. During this period, the exemption Notification No. 132/82-C.E., dated 21-4-1982 as amended, provided for exemption from basic excise duty and special excise duty as mentioned in this notification in respect of sugar produced in a sugar factory during the period from 1-5-1982 to 30-9-1982, which is in excess of the average production of the corresponding period of the preceding three sugar years. The quantum of exemption prescribed for free sale sugar was Rs. 40/- per quintal and quantum of exemption prescribed for levy sugar was Rs. 24.5 per quintal. The respondent submitted the rebate claim of amount of Rs. 7,84,395/- for the period from-1-5-1982 to 30-9-1982 in the office of the Superintendent on 29-10-1982, who, in turn, forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Asstt. Commissioner after taking into account an advance rebate of Rs. 4,50,000/- already granted to the respondent on 19-11-1984. Thus, the total amount sanctioned by the Asstt. Commissioner was Rs. 7,84,395/-. Against this order of the Commissioner, while the respondent filed an appeal to the Commissioner (Appeals) against appropriation of an amount of Rs. 3,50,053/- against outstanding demand, the department also filed review appeal on the ground that the Asstt. Commissioner s finding on the point of unjust enrichment is not correct and the refund is hit by the bar of unjust enrichment. The Commissioner (Appeals) vide order-in-appeal dated 17-5-2005 rejected both the appeals. Against this order of the Commissioner (Appeals), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 108/78-C.E. similar to the Notification No. 132/82-C.E., that the judgment of the Larger Bench of the Tribunal in the case of Kesar Enterprises v. CCE (supra) relied upon by the Commissioner (Appeals) is no longer a good law in view of the Apex Court s judgment in the case of Sahkari Khand Udyog (supra) and that in view of this, the impugned order is not correct. 4. Shri Kapil Vaish, Chartered Accountant, ld. Counsel for the respondent, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in it and pleaded that the principle of unjust enrichment is not applicable to the rabate under Notification No. 132/82-C.E., dated 21-4-1982, that this exemption notification confers the benefit of duty rebat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with sub-section (2) of Section 11B introduced w.e.f. 20-9-1991. According to sub-section (3) of Section 11B notwithstanding anything contrary contained in any judgment, decree, order or direction of appellate Tribunal or any court or any other provision of this Act or the Rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). Sub-section (3) of Section 11B is a non-obstante clause whose provisions shall have overriding effect. According to the sub-section (2) of Section 11B, except for the exceptions (a) to (f) mentioned in the proviso to sub-section (2) of Section 11B, in all other cases, the duty amount refundable shall be credited to the Consumer Welfare Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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