TMI Blog2006 (4) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the Order-in-Appeal No. 6/2004, dated 6-1-2004, passed by the Commissioner of Customs (Appeals), Bangalore. 2. Shri B. Venugopal, the learned Advocate appeared for M/s. Microland Ltd. and Shri Ganesh Havanur, Authorised Representative (SDR) appeared for the Revenue. C/123/2004 3. The party filed a refund claim for Customs duty amounting to Rs. 12,35,122/- consequent to finalization of provisional assessment of the goods imported from the related party. The Deputy Commissioner in his order dated 17-7-2002 sanctioned the refund but appropriated the same towards the duty demand under the Adjudication Orders No. 334/2001, dated 29-11-2001 and 359/2001, dated 29-11-2001, passed by the Deputy Commissioner. These two orders are under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions relating to the Central Excise to the effect that in respect of finalization of provisional assessment, the unjust enrichment is not applicable, cannot be applied to the Customs cases blindly. In any case, both the parties agreed that the matter has to be remanded to the Original authority for de novo decision. 6. We have gone through the records of the case carefully. In this case, the refund sanctioned had been adjusted against confirmed demands which were not challenged before the appellate authority. The contention of the learned Advocate that the refund cannot be adjusted against such demands which have not been attained finality is correct. On this ground, we have to set aside the Order-in-Appeal. However, it appears that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment, unjust enrichment is not applicable relates to Central Excise. In Central Excise law, there was a lacuna and after the Apex Court decision in the case of M/s. Mafatlal Industries [1997 (89) E.L.T. 247 (S.C.)], this lacuna has been remedied by the Legislature. By issue of Notification No. 45/99-CE (NT), dated 25-6-1999, a proviso was inserted after sub-rule (5) of the Rule 9B to Central Excise Rules and consequently, the refund arising on finalization of provisional assessment subject to the procedure under Section 11B (2). In view of the above, for the period prior to 25-6-1999, unjust enrichment is not applicable to the Central Excise cases of refund arising consequent to finalization of provisional assessment. (ii) The present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act was not pari materia with Rule 9B of the Central Excise Act during the relevant time. Hence the ratio of the decision in respect of the Central Excise cases cannot be made applicable to the Customs refund. We are in agreement with the Revenue s contention. As far as the Customs Act is concerned, every refund has to be examined from the unjust enrichment point at all time from the date of amending of provision relating to the refund. In the Central Excise, prior to the amendment of Rule 9B (5), unjust enrichment is not applicable in view of the lacuna in the law. In the case of Customs, there is no such problem. That means at all times, after the introduction of unjust enrichment in the provision relating to the refund every refund incl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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