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2014 (7) TMI 151 - AT - Central ExciseDenial of refund claim - differential duty was paid on finalization of provisional assessee - later the issue was decided in favor of assessee - Unjust enrichment - Held that:- In order to get over the situation arising under Mafatlal Industries Ltd., (2011 (8) TMI 880 - CESTAT, MUMBAI) vide notification No. 45/99-C.E. (N.T.), dated 25-6-1999, an amendment was made in sub-rule (5) of Rule 9B by adding a proviso thereto. The effect of the proviso is that even after finalisation of the provisional assessment under Rule 9B(5), if it is found that an assessee is entitled to refund, such refund shall not be made to him except in accordance with the procedure established under sub-section (2) of Section 11B of the Act. Proviso introduced in sub-rule (5) of Rule 9B cannot be said to be retrospective in operation. - However, revenue, contends that on the date on which the proviso was brought into force, i.e. 25-6-1999, the refund claim was still pending with the departmental authorities and, therefore, it had to be adjudicated in accordance with the law as it became enforceable from 25-6-1999. - this contention cannot be accepted. - Merely because the departmental authorities took a long time to process the application for refund, the right of the appellant does not get defeated by the subsequent amendment made in sub-rule (5) of Rule 9B. The matter should be re-examined by the lower authority in respect of the applicability of Doctrine of Unjust Enrichment. - Accordingly, impugned order insofar as the rejection of the refund, as it is hit by Doctrine of Unjust Enrichment, is set aside. - Decided in favour of assessee.
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