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TMI Blog2018 (6) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... vi C.S., Member (Judicial) and Shri Madhu Mohan Damodhar, Member (Technical) Shri B. Balamurugan, AC (AR) for the Appellant Shri T.R. Ramesh, Advocate for the Respondent ORDER Brief facts are that the respondents are engaged in manufacture of Distributed Control Panel (DCS),, Emergency Shut Down System (ESDS), Terminal Automation System (TAS) etc. They supplied goods to M/s. Reliance Petro Chemicals, and opted for provisional assessment since cost of some of the goods would be known only after completion of supply of materials. On finalizing provisional assessment, it was noticed that respondent had collected charges towards Design, Engineering, Project Management to the tune of ₹ 9,03,80,785/- and paid duty only @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amurugan submitted that the Commissioner (Appeals) ought to have rejected the refund claim for the reason that it is hit by unjust enrichment. The report of the Superintendent of the respective range confirms that M/s. Reliance Petrochemicals to whom the respondent sold the goods have availed MODVAT credit of the duty which is claimed as refund by the respondent. Thus, it is clear that the duty has been passed on to another and therefore is hit by the principles of unjust enrichment. 3. The ld. counsel Shri T.R. Ramesh appearing for the respondent submitted that the duty for which the clearances were made for the period 2.6.1998 to 28.2.1999 was sought as refund for the reason that the respondent had paid duty twice. This factum that res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concept of unjust enrichment applicable for provisional assessment also. The Larger Bench of the Tribunal has discussed the very same aspect and held that Rule 9B will be applicable only for provisional assessment made after 25.6.1999. Thus, we find that the contention of the department is without any merits. Another ground raised in the grounds of appeal is that differential duty in respect of design and engineering charges was wrongly set aside by the Commissioner (Appeals). On going through the Order-in-Appeal No. 104/2007 dated 30.11.2007, it is seen that the Commissioner (Appeals) has discussed this issue and set aside the demand thereby remanding the matter only to look into the question of refund. This issue having attained finality ..... X X X X Extracts X X X X X X X X Extracts X X X X
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