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2013 (8) TMI 577 - GUJARAT HIGH COURTRefund Claim of Duty - Unjust enrichment - finalization of provisional assessment - Duty paid under Protest - refund claim was rejected by the original authority on the ground that the petitioner-company had passed on an excess amount being claimed as refund to the customers and the refund claim was hit by doctrine of unjust enrichment. - Held that:- The duty on differential assessable value on account of Modvat Credit on input was denied on the ground of doctrine of unjust enrichment - Non receipt of goods had not been contended - when excess duty payment was to be refunded without considering the provision of Section 11B of the Central Excise Act as under the provisional assessment, duty payment was made under protest & hence the very base of decline would not survive. The assessee had paid provisional duty which got reduced on finalizing assessment, entitling the petitioner to get the refund which is payable in terms of Rule 9B of Excise Rules, 1944. It is not disputed by either side that the assessee is entitled to refund on account of appellate order passed by Tribunal under sub-Rule (5) of Rule 9B of Excise Rules. Thus, any recovery or refund consequent upon adjustment under Sub-rule (5) of Rule 9B is not to be governed by Section 11A & 11B of the Central Excise Act. Neither the final decision under Rule 9B(5) was appealed against nor the issue was re-agitated once again after such claim was finalized. Therefore, the issue of unjust enrichment was not required to be considered. Once the Revenue does not dispute the receipt of paperboards used as input material under the cover of invoices for preparing shells by the assesse which contained duty paying particulars, the Modvat Credit cannot be denied to the assesse - Even if the assesse had agreed later on that M/s. ITC Ltd was the real manufacturer, that ipso facto would not take away its right to avail refund claim when duties were recovered from the assessee, treating it as the manufacturer at the time of recovery - the assesse had established due payment of such duties - Non-maintenance of procedure was since not the ground contested, further dwelling on that subject was unnecessary - Department was directed to refund the entire amount with interest - Decided in favor of assesse.
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