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TMI Blog2015 (10) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... of accusation which the assessee was required to meet or answer. Further, it is bad in law as the same is not issued under the powers vested with the Commissioner under Section 35E (2) of the Act - Decided against Revenue. - APPEAL No.E/310/07 - Final Order No. A/3333/2015-WZB/EB - Dated:- 24-9-2015 - Mr.Anil Choudhary, Member (Judicial) And Mr. Raju, Member (Technical) Shri.Ashutosh Nath, Asst. Comm. (AR) : For The Petitioner Shri.Rajesh Ostwal, Advocate : For The Respondent ORDER Per: Anil Choudhary 1. Revenue is in appeal against Order-in-Original No.47/KKS/2005-2006 dated 31/03/2006 passed by Commissioner of Central Excise, Mumbai. 2. Brief facts of the case are that, for the financial year 1998-99 the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that they have sold the goods in the replacement market which is inclusive of excise duty after claiming the deduction on account of secondary cost of transportation, duty and taxes absorbed, interest on receivables and various discounts allowed to the buyers on provisional basis as per the provisions of Rule 9B of Central Excise Rules,1944. After the finalisation of the balance sheet, the assessee has been able to quantify the exact amount of permissible deductions on the above heads of accounts. Thus as per the calculation sheet enclosed along with the refund claim, it is clear that the assessee has claimed less abatement towards the said permissible deductions. They had relied upon the para 95 of the Supreme Court judgement in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 falls short of or is in excess of the duty finally assessed the (assessee) shall pay the deficiency or be entitled to a refund, as the case may be. And along with the provisions of the Rule, various case laws as submitted by the assessee clarify the matter and I therefore, conclude that the doctrine of unjust enrichment is not applicable in the instant case. 9. In view of the discussions above, facts and circumstances of the case, order-in-original No.1/01-02 dated 04/06/2000 of the then Deputy Commissioner regarding the finalisation of the provisional assessment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bles, the same stands settled by the order of this Tribunal dated 28/04/2004. So far, the issue of unjust enrichment is concerned, the provision under Rule 9B (5) of Central Excise Rules, 1944 was made applicable with effect from 26/06/1999. It was further observed that the amendment is substantive in nature to the existing law, the same is applicable prospectively. Accordingly, it was held that for the period in question, i.e. 1998-99 the said amendment dated 25/06/1999 will not be applicable. Further, the learned Commissioner also referred the ruling in the case of Mafatlal Industries Ltd. 1997 (89) ELT 247 (SC) taking note of the Honble Supreme Court decision that any refund consequent upon adjustment under sub-rule (5) of Rule 9B will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE 2015 (316) ELT 192 (Bom) wherein it was held that the relevant date for the purpose of limitation under Section 11A is the date of finalisation of provisional assessment. In this case as the provisional assessment was on 04/06/2001, and the amendment came into effect under Rule 9B prior to that date, on the provisional assessment unjust enrichment is applicable. Further his contention is that the adjudicating authority granting refund vide order dated 31/03/2003 have not considered the issue of unjust enrichment in proper perspective. 5.1 The learned DR further relied upon the decision of Hon ble Madras High Court in the case of Dollar Company Pvt. Ltd. 2015-TIOL-344-HC-MAD-CX wherein the question before the Hon ble High Court was wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no doubt that clause (eb) explanation B of Secation 11B is squarely applicable and the assessee also does not dispute the same, i.e. in respect of unjust enrichment. The relevant date of the applicability, the Hon ble High Court following ruling of Mafatlal Industries Ltd., and the TVS Suzuki Ltd. and the Apex Court held that the refund claim was made on 21/09/1998 sub-rule 5 of Rule 9B came into force subsequently therefore, mischief of unjust enrichment will not apply. 6. The learned Counsel for the respondent assessee supports the impugned order and further states that the whole proceedings are otherwise initiated vide the show-cause notice, which itself is without jurisdiction, because the show-cause notice was issued only unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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