TMI Blog2005 (10) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... w the parties to raise all issues as regards the valuation as well as rate and calculation of duty. The Commissioner (Appeals) has examined the entire issue on merits and finalized the provisional assessment. The period involved is 18-3-90 to 31-11-95. Consequent to the finalization of the provisional assessment, the Commissioner (Appeals) in the impugned order granted consequential relief of Rs. 4,35,80,736/-. Revenue is aggrieved over the impugned order and has come before this Tribunal for relief on the following grounds. (1) The Commissioner (Appeals) has ordered refund without causing any verification of the unjust enrichment aspect. As per Section 12B of the Central Excise Act 1944, the incidence of duty paid by the appellant be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which some amount of additional duty was paid by the appellants, approximately fifty percent of the demand raised, and in respect of the balance amount bank guarantees were furnished. In the absence of any material on record we do not propose to decide whether the principal of unjust enrichment is applicable in these cases. Normally with the appeals being allowed the consequence of refund of additional duty paid follows. In these appeals, However, we have held that the decision in Khandelwal Metal Engineering Works case does not lay down the correct law as indicated in this judgment. Having come to this conclusion about fourteen years after the decision in Khandelwal Metal Engineering Works case was rendered it would not be equitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. TVS Suzuki reported in 2003 (156) E.L.T. 161 (S.C.)=2003 (110 ECR 1 SC). The above decision was challenged by the department in a Revenue petition. The Revenue petition was dismissed as reported in 2004 (169) E.L.T. A 149 (S.C.). The above decision of the Supreme Court has been relied and confirmed by Hon'ble Supreme Court in the case of CCE v. Allied Photographics [2004 (166) E.L.T. 3 (S.C.)]. The observation of the Supreme Court in the case of Hyderabad Industries to the effect that no refund should be granted as a sequel to the decision is very specific to the parties concerned under Article 142 of the Constitution. What is binding on all assessees and parties is the law laid down under Article 141 of the Constitution as additional d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged by the Department before the Supreme Court. The Supreme Court in its order dated 6th May 2003 directed the Commissioner (Appeals) to rehear the matter and decide the issue on merits. Consequently the Commissioner (Appeals) issued the impugned order finalizing the provisional assessment. We find that the provisional assessments pertain to a period much before the amendments or Rule 9B of the Central Excise Rule, 1944. During this period, provisions of Section 11B of the CE Act are not applicable to finalization of provisional assessment. The case laws cited by the learned advocate are very relevant. Moreover, the observation of the Supreme Court in the case of Hyderabad Industries to the effect that the respondents was not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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