TMI Blog2011 (3) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench as well as subsequent decisions - Appeal is dismissed - 104 of 2010 - - - Dated:- 7-3-2011 - N. Kumar and Ravi Malimath, JJ. REPRESENTED BY : Shri Y. Hariprasad, Advocate, for the Appellant. Shri K.S. Ravishankar, Advocate, for the Respondent. [Judgment per : N. Kumar, J.]. This appeal is by the revenue challenging the order passed by the Tribunal [2010 (262) E.L.T. 949 (Tribunal)], which has upheld the order of the appellate authority, which directed for refund of the excess duty paid to the assessee. 2. The assessee M/s. ITC Limited, Bangalore are manufacturers of cigarettes falling under Chapter 24 of CETA, 1985. A provisional order came to be passed permitting the assessee to pay duty as per the price list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is eligible for refund and the case is not hit by the provisions of unjust enrichment. However, the assessee had requested for adjustment of the aforesaid amount which was sanctioned for refund of the amount which are determined to be due by the assessee to the department. Accordingly, the said adjustment was done and after such adjustment, the amount which was actually due to the assessee was Rs. 1,26,66,595/- only. The said amount was ordered to be refunded to the assessee. Aggrieved by the said order, the revenue preferred an appeal to the Tribunal. The Tribunal held that the doctrine of unjust enrichment applies to the facts of the case. It also held that the burden of proving of the liability is not passed on to the customer squarely f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Authority, the Tribunal and the department proceeds on the assumption that this is a case of claim for refund by the assessee under Section 11B of the Excise Act, 1944 and therefore, the burden of unjust enrichment applies. However, the material on record, which is not in dispute, discloses that the duty was paid in pursuance of a provisional assessment whereas in the final order of assessment, the Assessing Authority directed the assessee to pay the differential duty. The said order was challenged before the Appellate Authority. The Appellate Authority set aside the said order and directed for re-determination of the duty payable by the assessee. After said re-determination of the duty payable, the Assessing Authority found that the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment in the case Mafatlal Industries Ltd. (supra) states that if refund arises upon finalisation of provisional assessment, Section 11B will not apply. Similarly, the judgment of the Apex Court in the case of Commissioner of Central Excise, Chennai v. T.V.S. Suzuki Ltd. reported in 2003 (156) E.L.T. 161 (S.C.) held that the refund claims consequent upon finalization of the provisional assessment does not attract the bar of unjust enrichment. Even subsequent to 1989 to the amendment to Section 11B(2), the case of unjust enrichment is not attracted. 6. In the instant case, the relevant period is from 1-10-1975 to 28-2-1983 before the amendment to Section 11B(2) of the Act. This is not a case arising out of Section 11B of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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