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TMI Blog2011 (1) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... - II situated at the above mentioned address and subsequently Unit-I was closed. The petitioner during the year 1999 to 2001 cleared plastic chairs manufactured at their factory at Pondicherry duly discharging the liabilities. The case of the petitioner is that, in case the chairs cleared suffers from any defects, the same are returned to the factory and the petitioner with respect to such goods is entitled to refund as per the procedure laid down under Rule 173-L of the Central Excise Rules, 1944. The petitioner, by complying with the Rule, filed a Refund Claim before the respondent. The claim of the respondent was declined by the Assistant Commissioner of Central Excise, Puducherry Division vide his Order-in-Original No. 76/2001, dated 7-12-2001, order in Original No. 2/2001, dated 14-3-2001 and Order-in-Original No. 43/2002, dated 20-8-2002. The petitioner, aggrieved by the order filed an appeal before the Assistant Commissioner of Central Excise, Central Excise Division, Coubert Avenue, Pondicherry - 605 001, wherein the relief was claimed with regard to the following claim :- 4. The reground chips along with virgin material were used in the manufacture of final goods wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, Bangalore and CCE, Indore v. Medi Caps Ltd. that the doctrine of unjust enrichment is not applicable to the refund claims under Rule 173-L and the ratio of the said decisions is squarely applicable to the instant case. 4. As already observed the appeals were allowed and by setting aside the orders, the petitioner was permitted to avail consequential relief, if any. 5. The petitioner being dissatisfied with the order passed by the appellate authority referred to above, approached the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench at Chennai by way of Appeal Nos. E/129, 130, 131/2003/MAS. The Tribunal also dismissed the appeal. The petitioner, thereafter, filed Civil Miscellaneous Appeal No. 2340 of 2005 to challenge the order of the Customs, Excise and Service Tax Appellate Tribunal. When the case came up for hearing in this court, permission was sought to withdraw the appeal with liberty to prosecute the rectification application filed by the Revenue on 15-3-2005 before the Hon'ble CESTAT. The rectification application was also dismissed vide order dated 12-10-2004. In view of the orders referred to above, the petitioner made an application fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in spite of entitlement to refund, it can be refused in case it is proved to be a case of undue enrichment, placed reliance on the judgment of the Hon'ble Supreme Court in Union of India v. Raj Industries reported in 2000 (120) E.L.T. 50 (S.C.), wherein the Hon'ble Supreme Court was pleased to hold as under :- "7. However, the further question remains in the meantime the amount of duty collected in excess, which is already refunded to the respondent-firm pursuant to the impugned order of the High Court can be retained by it or not on the principle of unjust enrichment. Thus this limited question now survives for consideration. 8. In support of this contention learned counsel for the appellants referred to a Constitution Bench decision of this Court in the case of Mafatlal Industries Ltd. & Ors. v. Union of India & Ors. [1997 (89) E.L.T. 247 (S.C.) = (1997) 5 SCC 536] at page 634. Learned counsel for the respondents, on the other hand, submitted that the format order framed by this Court pursuant to the aforesaid decision does not cover this controversy. He strongly relied upon the format order at page 2 of the paper book which mentions that proceedings for examining th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the order, it has to be held that the question of undue enrichment was not decided, as it was made clear by the appellate authority that the petitioner would be entitled to consequential benefit, if any, which means that the question as to whether it was the case of undue enrichment was left open to be decided subsequently. 15. This contention of learned counsel for the respondents also deserves to be noticed as rejected, as question of undue enrichment will not apply to this case, in case of positive findings by the appellate authority, against which appeal was filed by the petitioner but this finding was not challenged. 16. On consideration of the matter, I find force on the contention raised by the learned counsel for the petitioner. The question of refund stands decided in favour of the petitioner up to this court and the order has attained finality. 17. The question of undue enrichment was also considered and decided in favour of the petitioner by the appellate authority by recording that the principle of undue enrichment would not apply to claim under Rule 173-L of the Central Excise Rules, 1944. 18. The petitioner was at liberty to challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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