TMI Blog2009 (8) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee for the period from 31-7-2004 to 3-8-2006, on an amount of Rs. 77,34,708/-, and asked the assessee to pay the same. It was in the wake of this demand of interest that the present application for stay of recovery was filed. After disposing of this application, we proceed to deal with the appeal. 2. In finalisation of a provisional assessment, the Assistant Commissioner had passed order dated 24-3-2004 under Rule 7 of the Central Excise Rules, 2002 for the year 2002-03 finalising the provisional assessment made on 11-4-2003. This finalisation order was not challenged by the assessee, nor by the Revenue. On 8-6-2004, another Assistant Commissioner in the office of the Commissioner informed the assessee in writing that any refund a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of eight weeks from today and approach the proper officer for refund of the disputed amount, who after examining all the angles would pass an appropriate order on the same. Stay petition also gets disposed off in above terms. Pursuant to the above order of this Tribunal, the assessee reversed the credit in RG23A Part-II within the stipulated period of eight weeks and also filed a refund claim for equal amount under Section 11B of the Central Excise Act. This claim was filed on 29-9-2006. The original authority rejected this claim as barred by limitation and unjust enrichment under Section 11B of the Act. In an appeal filed by the assessee, the decision of the said authority was upheld by the Commissioner (Appeals). Hence the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (Tri.-LB), wherein it was held that there was no provision under the Central Excise Act or Rules for taking suo motu credit or refund without sanction by the proper officer and that all types of refund claims should be filed under Section 11B of the Act. 5. We have given careful consideration to the submissions. The finalisation of a provisional assessment is not anything in dispute. The assessee was apparently misguided by an Assistant Commissioner and consequently, they happened to take credit of the excess duty paid by them, in their RG23A Part-II. Realizing the mistake, the department issued a show-cause notice for recovery of the amount on the ground that there was no provision for suo motu availment of Cenvat credit of any amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund. However, the proviso to this sub-rule says that the amount of refund shall be paid to the applicant if such amount is relatable to (a) duty of excise paid by the manufacturer if he had not passed on the incidence of such duty to any other person or (b) duty of excise borne by the buyer if he had not passed on such incidence of the duty to any other person. This provision of law does not mention time-bar, though it embodies the principle of unjust enrichment. We have found that the Commissioner (Appeals) did not advert to sub-rule (6) of Rule 7 at all. May be, due to this error, the order of adjudication rejecting the refund claim as time-barred and as hit by the bar of unjust enrichment came to be sustained. We have found that the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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