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TMI Blog2017 (1) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to transfer the same to the Consumer Welfare Fund in terms of Section 11B(2) read with Section 12B of the Central Excise Act, 1944 and rejected the refund claim of Central Excise duty amounting to Rs. 3,68,119.06, Rs. 6,72,072.91 and Rs. 88,138.23. On Appeal the lower appellate authority set aside the Order-in-Original dated 15.04.2010 and allowed the Appeal holding the entire amount of Rs. 20,87,729/- as refund rightly claimed and admissible and payable to the appellant assessee. Being aggrieved by the order of the lower appellate authority the Revenue has preferred this appeal. 2. The appellant Revenue is represented by Shri K.Choudhary, Supdt.(AR) and the respondent assessee is represented by Shri S.P.Majumdar, Advocate. 3. The ld.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent assessee is eligible for the refund. 4. Ld.Counsel appearing on behalf of the respondent assessee made the Bench go through the Tribunal's order dated 10.02.2005 wherein the two issues viz. (a) whether the claim was barred by limitation and (b) whether the claim is covered by the doctrine of unjust enrichment was decided by the Tribunal and the appeal was allowed by way of remand to the original authority only for the limited purpose of re-determining the quantum of refund claim. He further submitted that the Adjudicating authority while passing the order dated 15.04.2010 has travelled beyond the directions of the Hon'ble Tribunal and the ld.Commissioner(Appeals) vide the impugned order has examined the entire facts on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty has been passed on to the consumers/buyers directly or indirectly. 7. By the impugned order, the Commissioner(Appeals) set aside the Adjudication order and allowed the appeal on the ground that the Tribunal in its earlier order had directed to re-determine the quantum of refund payable to the appellant and it was not open to the Adjudicating Authority to decide the issue of unjust enrichment differently. The relevant portion of the Tribunal's order dated 20.01.2005 is reproduced below:- "2. The issue of the applicability of bar of unjust enrichment under the proviso to Section 9B of Central Excise Rules, 1944 is no longer res integra having been settled by the decision in the case of Hindustan Lever Ltd. Vs. Commr. of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved by the Supreme Court as it is mentioned in para 4 of the judgement that there is no dispute that the refund claim was made much prior to the addition of the proviso in sub-rule (5) of rule 9B. The Supreme Court observed that on the date on which the refund claim was made, the law applicable was the law as declared by this Court in Mafatlal Industries Ltd.. In the present matter for these two financial years the law applicable on the date on which refund claim was made has changed as the proviso to sub rule (5) of rule 9B has been inserted in 1999 i.e. before the finalization of the assessment and making the refund claim. Appellate Tribunal also in the case of Korex India Ltd.(supra) has held that the Supreme Court's decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand to the Original Authority to re-determine the quantum of refund claim since nothing contrary has been shown to us." 8. I find that the Tribunal followed the decision in the case of Hindustan Lever Ltd. (supra) on the issue of applicability of unjust enrichment. It is evident that the respondent themselves stated the facts for non-applicability of unjust enrichment and in this context, the Adjudicating Authority held that the refund is hit by unjust enrichment. The lower authorities have failed to consider the Tribunal's order dated 20.01.2005 in proper perspective in the context of the facts and circumstances of the case. 9. It is appropriate that the Commissioner(Appeals) should have examined the facts of the case in light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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