TMI Blog2001 (7) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Kamalavishnu, learned Consultant for the appellants submitted that in their own case the Bench considered the issue and has taken into consideration the Hon ble Supreme Court judgment in the case of Mafatlal Industries Ltd. reported in 1997 (89) E.L.T. 247 (SC) and that of Tribunal in the case of Needle Industries (India) Ltd. reported in [1998 (101) E.L.T. 286 (T) = 1998 (26) RLT 307 and that of Indo Flogates Ltd. reported in 1997 (20) RLT 308 and held that unjust enrichment would not apply where the refund claim has been filed as a consequence of finalization of provisional assessment. This has been clarified by the Hon ble Supreme Court in the case of Mafatlal Industries (supra). He further submitted that as a result of the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that provisions of unjust enrichment would not apply to cases where the refund claim was as a result of finalization of provisional assessment. The said ratio has been applied by this bench in the case of Needle Industries and Indo Flogates Ltd. (supra) and in the case of TVS Suzuki (supra) and the Tribunal has clarified that amendment to Rule 9B(5) will have prospective effect and not retrospective effect and the assessments which were finalized prior to this date shall be entitled to the benefit of refund in terms of Section 11B and not hit by the provisions of unjust enrichment. In the appellants own case, this Bench vide final order No. 949/2001, dated 22-6-2001 has allowed the appellants appeal. The findings recorded in para 4 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htly met by ld. Consultant by pointing out that it was a cum-duty price and the question of recovering the amounts from the consumer or purchasers did not arise as they had paid the amount and there was no question of unjust enrichment. This point is also covered by number of judgments including the Apex Court judgments in the case of Mafatlal Industries Ltd. [1997 (89) E.L.T. 247 (S.C.)]. In that view of the matter, the findings recorded by the Commissioner (Appeals) is not as per law and the same is set aside by allowing the appeal, with consequential relief, if any. 6. So long as the case law referred to by the learned DR is concerned, and the citations of the Commissioner (Appeals) the issue in those cases does not refer to refund on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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