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2015 (11) TMI 88 - CESTAT MUMBAIDenial of refund claim - Unjust enrichment - Bar of limitation - Duty paid under protest - Held that:- Refund which was rejected on the ground of unjust enrichment by the original authority vide order dated 13/9/1989 has been allowed by setting aside the Order-in-Original. It is undisputed that after this order in appeal dated 24/4/1990, the Revenue has not filed any appeal against the said order dated 24/4/1990 therefore same attained finality. Thereafter by way of another show cause notice the Asstt. Commissioner again raised point of unjust enrichment and the same was adjudicated against assessee and Commissioner (Appeals) upheld the same vide impugned order. - proceedings is absolutely non est and infructuous for the reason that once the issue has been settled by the Commissioner (Appeals) without challenging the same, Rvenue could not again raised the same issue by way of another show cause notice and deciding the same contrarily by taking U-turn. The Asstt. Commissioner and Ld. Commissioner (Appeals) in the subsequent proceedings held that the provision of unjust enrichment is applicable in the case pertaining to the period before the enactment of provision of unjust enrichment and that the refund is sanctioned subsequent to the enactment. Even though contention of the Ld. Asstt. Commissioner is taken as correct but this contention could have been raised not by issuing fresh show cause notice but by way of appeal against the earlier order (dated 24/4/1999) of the Commissioner (Appeals). Since the department failed to file an appeal against the said order, the order dated 24/4/1999 passed by the Commissioner (Appeals) has attained finality and all the proceedings subsequent to that by way of another show cause and adjudication and appeal become non-est and therefore the order dated 24/4/1999 shall prevail by which it was held that unjust enrichment is not applicable. In view of this position the refund claim rejected on the ground of unjust enrichment in the impugned order is not sustainable. - impugned order rejecting claim on the ground of unjust enrichment as well as limitation is not sustainable, hence, the same is set aside. - Decided in favour of assessee.
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