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2010 (4) TMI 317 - CESTAT, MUMBAIRefund- unjust enrichment- The assessee was paying duty on their final products on the basis of provisional assessments. In the show-cause notice, it was alleged that the party had contravened the provisions of Rule 9B(5) and Rule 9(1) read with Rule 173G(1) of the Central Excise Rules, 1944 The proposals in the notice were contested. In adjudication of the dispute, the original authority held that the assessee’s action of having taken suo motu credit was illegal and, therefore, they should pay back the entire amount with interest @ 20% p.a. The appeal filed by the assessee against the order-in-original was allowed by the Commissioner (Appeals). Hence the present appeal of the department. Held that- where the assessing authority in its order of finalisation of provisional assessment does not expressly permit the assessee to have the benefit of refund by way of credit in PLA/MODVAT account, the assessee would be justified in having this benefit by way of sue motu credit in these accounts. This is what was done by the assessee in the present case. In any case, what was done by the assessee has not been shown to be prejudicial to the Revenue. In the result, this appeal filed by the Revenue is dismissed .
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