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TMI Blog2014 (7) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 2002 for the supply of finished goods on the basis of different contracts. By order dated 28.09.2005, the Assistant Commissioner of Central Excise finalised the provisional assessment and held that the appellant is liable to pay differential duty of Rs. 15,90,704/- in terms of Rule 7(3) of the erstwhile Central Excise Rules, 2001/Rule 7(3) of the Central Excise Rules, 2002. By the impugned order, the Commissioner (Appeals) set aside the order passed by the Assistant Commissioner and held that the appellant is eligible for refund. But the refund was rejected as it is hit by doctrine of unjust enrichment. 2. The learned Counsel for the appellant submits that they have cleared the goods on the basis of contracts pertaining to 1994 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly invoked Rule 7 of Cenvat Credit Rules, 2002 and Rule 9B of the erstwhile Central Excise Rules would not apply. He further submits that the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. Vs Commissioner of Central Excise & Customs reported in 2005 (181) E.L.T.328 (S.C.) observed that Doctrine of Unjust Enrichment would apply for every refund claim. He submits that the said decision of the Hon'ble Supreme Court was followed by the Hon'ble Madras High Court in the case of Commissioner of Customs, Chennai-I Vs Design Classics Exports (P) Ltd. as reported in 2014 (299) E.L.T.153 (Mad.) and the Tribunal in various other cases. He further submits that the Larger Bench of the Tribunal in case of Excel Rubber Ltd. Vs Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9B would not be governed by the restrictions of Section 11A or Section 11B, as the case may be. This Court observed (vide Paragraph 104) as under : Rule 9B provides for provisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that 'when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of this Court in Sinkhai Synthetics & Chemicals Pvt. Ltd. v. CCE, Aurangabad [2002 (143) E.L.T. 17 (S.C.)]. This Court took the view that the case would be governed by the rule laid down in Mafatlal Industries Ltd. (supra). This view has been reiterated in a subsequent judgment of this Court in C.A. No. 2533 of 2001 (Commissioner of Central Excise, Meerut v. M/s. Star Paper Mills Limited) upholding the view of the Tribunal that the refund claim of the appellant before the court was justified. 5. Shri Verma fairly concedes that the proviso introduced in sub-rule (5) of Rule 9B cannot be said to be retrospective in operation. He, however, contends that on the date on which the proviso was brought into force, i.e. 25-6-1999, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the appellant is eligible for refund, but, it was rejected on account of unjust enrichment without giving any opportunity to the appellant to defend their case on the unjust enrichment. 7. The learned Authorised Representative relied upon the decision of the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. (supra), wherein the Hon'ble Court observed that Doctrine of Unjust Enrichment based on equity. I find that in the case of T.V.S. Suzuki Ltd. (supra). The Hon'ble Supreme Court particularly while dealing with the amendment made in Rule 9B(5) of the erstwhile Rules held that the Doctrine of Unjust Enrichment would not apply prior to that amendment, which was followed in the case of Allied Photographics Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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