TMI Blog2008 (6) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... of proof of evidence of duty being borne by the Respondent themselves, the amount was credited to Consumer Welfare Fund. 2. The relevant facts of the case as revealed from the impugned order in brief, are that the Respondent classified their product Latex mixture under sub-heading No. 4001.00 at nil rate of duty. Revenue proposed to classify the said product under heading no. 40.05 attracting 15% Adv. BED duty + 5% SED on Basic Excise Duty. The Respondent paid duty of Rs. 17,25,392.12 for the period 23-1-90 to 6-7-92 on the basis of provisional approval of classification list. The Assistant Commissioner of Central Excise vide Order dated 8-3-91 decided the matter against the Respondent. The Commissioner (Appeals) by Order dated 30-6-92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the contention of the ld. DR that in compliance of Order dated 8-3-91, the Respondent started paying duty under protest only after finalisation of classification list, has no merit. The ld. DR also contended that in view of the decision of the Hon ble Supreme Court in the case of Allied Photographics v. U.O.I. - 2004 (166) E.L.T. 3 (S.C.), unjust enrichment is applicable in respect of refund of duty paid under protest after final assessment. We find that the Commissioner (Appeals) had given detailed finding as under :- 16. This issue was dealt in the decision of the Southern Bench of CEGAT in the case of M/s. TVS Suzuki Ltd., vide Final Order No. 1786/99 dated 21-7-99 wherein it was held that the provision of unjust enrichment under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the department s plea that though the proviso inserted in sub-rule (5) of Rule 9B cannot be said to be retrospective in operation, yet 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, to be adjudicated in accordance with the laws as it became enforceable with effect from 25-6-1999. The court observed that merely because the department took a long time to proceed the application for refund, the right of appellant does not get defeated by the subsequent amendment made in Rule 9B(5) effective from 25-6-1999. This ruling stands reaffirmed in the latest decision of the Hon ble Supreme Court in the matter of CCE v. Allied Photographics ..... X X X X Extracts X X X X X X X X Extracts X X X X
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