9911796707
TMI Blog2005 (11) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... Manager, Indirect Taxation, for the Respondent. [Order per : Moheb Ali M., Member (T)]. - Revenue is in appeal against the order of Commissioner of Central Excise (Appeals) Mumbai. The Commissioner set aside the order of the lower authority who rejected the refund claim before him as time barred. The respondents pleaded before him that they paid duty under protest whereas the Deputy Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate order. He thereupon allowed the appeal and ordered consequential relief. 3. The Revenue contends that the Commissioner erred in ordering consequential relief without examining the bar of unjust enrichment. 4. Heard both sides. 5. The isue pertains to denial of credit taken by the respondents herein on the strength of stock transfer invoices. The respondents, on receipt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chment was not examined. He relied upon the decision of the Hon'ble Supreme Court's decision in the case of Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise & Customs, [2005 (181) E.L.T. 328 (S.C.)] wherein the Apex Court held that irrespective of the provisions contained in Section 11AB an assessee is entitled for refund of excess duty only when he suffers an injury. In para 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief is not granted, he would suffer loss. " 7. Any refund claim, therefore has to be tested on the anvil of unjust enrichment. In the present case we agree with the Commissioner's finding that the respondent is entitled for refund of MODVAT Credit reversed by him. But such a refund is subject to crossing of bar of unjust enrichment. We agree with the Revenue that the Commissioner failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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