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TMI Blog2024 (1) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the case of COMMISSIONER OF C. EX., CHENNAI-I VERSUS SUPERINTENDING ENGINEER, TNEB [ 2011 (3) TMI 1500 - MADRAS HIGH COURT ] wherein the Hon ble Division Bench after taking note of the findings of the Hon ble Supreme Court in paragraph 99 of the judgment in Mafatlal Industries held that there was no unjust enrichment even as regards the Government undertakings and following the same it was held that unjust enrichment is not applicable as far as the state undertakings are concerned. The learned tribunal after taking note of the factual position has conclusively held that the bar of unjust enrichment would not apply as the vessel in question is still in use and has not been sold or disposed of. Furthermore, the certificate issued by the Chartered Accountant was also taken note of which was not shown to be factually incorrect by the department. The appeal is dismissed and the substantial questions of law are answered against the appellant revenue. - HON BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM AND HON BLE MR. JUSTICE HIRANMAY BHATTACHARYYA Appearance:- For the Appellant : Mr. K.K. Maiti, Learned Senior Standing Counsel. Mr. Tapan Bhanja, Adv. For the Respondent : Dr. Samir Chakra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to them as the two conditions mentioned in the Accessories Rules and Notification No. 133 of 1987 has been fulfilled by them. The adjudicating authority rejected such contention raised by the assessee and confirmed that the demand of duty in respect of spares and accessories and denied benefit of Notification No. 133/87-Cus. The appeal filed by the assessee against the said order of adjudication was dismissed by the Commissioner Appeals. Aggrieved by the same, the assessee filed the appeal before the tribunal. The tribunal by order dated 13.09.2001 accepted the case of the assessee and in doing so relied upon the decision of the Coordinate Bench of the tribunal in the case of Boskalis Dredging India Private Limited Versus Commissioner of Customs, Bhubaneshwar dated 06.11.1997 thereby holding that the accessories and spares, pipelines etc. forms an indispensable part of the main vessel. It is thereafter the assessee filed a claim for refund of Rs. 11,32,81,147/-. When the refund application was taken up for consideration it was alleged that the application was not filed within the period of six months from the date of finalization of provisional assessment made by the Assistant Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to pass a reasoned order on the basis of the legal provisions and the observations made in the said order. The adjudicating authority took up the matter for consideration noted that the order passed by the Commissioner of Customs (Appeals) has been accepted by the Commissioner of Customs (Port) on 08.06.2005, however, once again while sanctioning the refund directed the amount to be credited in the Consumer Welfare Fund. Aggrieved by such order, the assessee filed the appeal before Commissioner of Customs (Appeals). The appeal was allowed and the order of the adjudicating authority was set aside and the matter was remanded to the authority for fresh consideration and to initiate action as per the instruction given in the order dated 23.03.2005. This order was put to challenge before the tribunal by the assessee. The tribunal by order dated 05.11.2012 set aside the order passed by the Commissioner (Appeals) and directed the case to be decided afresh after giving an opportunity to the assessee. The Commissioner of Appeals by order dated 30.06.2015 set aside the order passed by the Assistant Commissioner crediting the refund to the Consumer Welfare Fund and directed the refund to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been sold. Therefore, the appellate authority held that when the goods are still in use the question of passing the burden of duty does not arise and the question of unjust enrichment will not be applicable. 10. While on this issue, it will be beneficial to refer to the decision in the case of Commissioner of Central Excise, Chennai I Versus Superintending Engineer, TNEB 2014 (300) ELT 45 (Mad) wherein the Hon ble Division Bench after taking note of the findings of the Hon ble Supreme Court in paragraph 99 of the judgment in Mafatlal Industries held that there was no unjust enrichment even as regards the Government undertakings and following the same it was held that unjust enrichment is not applicable as far as the state undertakings are concerned. The decision in the Commissioner of Central Excise, Bangalore-II Versus Karnataka State Agro Corn Products Limited 2006 (202) ELT 47 (Kar) was distinguished as in the said case, it was shown that the duty had been passed to the consumer and the duty has been made over to the Central Government. 11. The learned Standing Counsel appearing for the appellant placed reliance on the decision in Western Coalfields Limited Versus CESTAT, New De ..... 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