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2009 (8) TMI 462 - HC - Central ExciseRefund-Unjust enrichment- The Revenue is in appeal, questioning the order of the CESTAT, whereunder the Tribunal has allowed the appeal filed by the respondent herein and remanded the matter to the original authority to reconsider the refund and grant the same without applying the provisions of unjust enrichment on the ground that in the facts and circumstances of the case, the said provisions are not applicable and has further directed that refund due to the respondent herein should be granted and for the said purpose the matter has been remanded. Held that- we are of the view that the arguments of the doctrine of ‘unjust enrichment’ being not attracted to the case of adjustment can be accepted only up to the stage when the imported goods are actually not physically removed from the customs charge, in the sense that the goods were not available to the assessee for being transacted as a trading proposition or a business proposition and if it had actually been cleared out of customs charge and was available to the assessee for being transacted, then even in a case of adjustment, the doctrine of ‘unjust enrichment’ cannot be kept out, but has to be verified on facts as to the possibility of the duties being passed on to the consumers or absorbed by the assessee. When the Original authority examines this question, it will have to necessarily bear in mind all these legal aspects including the question of limitation and for this purpose, it is clarified that if it was a case of an application under Section 27, the starting point for running of limitation is date of finalisation of the assessment order and not the order of provisional assessment. With this clarification, the judgment is retained.
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