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TMI Blog2013 (11) TMI 1536X X X X Extracts X X X X X X X X Extracts X X X X ..... ading Nos. 3921.91, 5603.00 and 5903.10 of the Central Excise Tariff Act, 1985. In terms of the first proviso to Para 2 of the Notification No. 5/94-C.E., dated 1-3-1994, they were entitled to avail Modvat credit only if they were to pay Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 on their final products. The final products manufactured by them did not attract additional duty under the said Act. They used the Modvat credit of duty paid on inputs namely yarn and grey fabrics under Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 and under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 while discharging liability for payment of Additional Duty on the final product namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide by this Tribunal. In consequence to the Tribunal's order dated 12-3-2004, they filed refund claim which is well within time. Moreover, he submits that the amount paid during investigation does not attract unjust enrichment consequence to clearance of the goods. To support his contention he placed reliance in the case of Opel Alloys Pvt. Ltd. v. CCE, Ghaziabad - 2010 (249) E.L.T. 408 (Tri.-Del.). 5. On the other hand, learned AR strongly opposed the contention of the learned Advocate and submitted that as the appellant has utilized the credit for payment on the finished goods therefore bar of unjust enrichment is applicable. To support his contention he placed reliance on the decisions of Hon'ble Apex Court in the cases of Sahakari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attracts bar of unjust enrichment whereas unjust enrichment is not applicable to the refund consequent to finalization of assessment. With regard to the decision in the case of Opel Alloys Pvt. Ltd. (supra) this Tribunal has held that amount deposited during investigation, the same has been confirmed against the assessee. On appeal the said amount was held not to be paid is required to be refunded and not attract the bar of unjust enrichment. 7.2 With regard to the limitation also this Tribunal has held that refund claim filed within 90 days of the decision of the Tribunal is within time. Therefore on both the counts, I set aside the impugned order and allow the appeal with consequential relief. 8. The adjudicating authority is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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