TMI Blog2006 (2) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... on Aerated water by the amount of duty already paid on flavouring essence. The Assistant Commissioner of Central Excise in his order dated 22-12-1997 ordered for the credit to the Consumer Welfare Fund, on the basis of that the respondent have not availed the 'set of' as per notification No. 325/86-CE, dated 27-5-1986, paid full duty and collected the same from the customer. Since the amount claimed as refund have already been passed on to the customer and collected from the customer, it was a clear cut case of unjust enrichment. The respondent preferred the appeal before the Commissioner (Appeals) who in his order dated 30-7-1999 observed that under Section 11B(2)(c) of the Central Excise Act, 1944 held that: "the doctrine of unjust enri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the proposition that the law prevalent at the relevant time has to be applied. It is on this very principle that the refund has not been granted and question of grant of refund arose actually only after the decisions of the CEGAT. Till then there was a dispute as to the manner in which the benefit was to be worked out." The same will be applicable in this case and the respondents cannot be given any refund. Shri Uday Kumar, JDR reiterates the grounds of Appeal by the Revenue. 4. Heard Shri K.K. Banerjee, Id. Advocate for the Appellant. He submits that Supreme Court's decision as referred to above by the appellant is not applicable as in this case the refund is not arising out of the order passed by the CESTAT. The appellant has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith consequential relief. Therefore, provisions of Section 11(B)2(c) of the C.E.A. 44 is squarely applicable in the instant case of refund of the appellant and the same can neither be rejected or denied to the Appellant on the ground of unjust enrichment nor can be allowed to be credited to the consumer welfare fund, as ordered by A.C. in the impugned Order-in-Original. Accordingly, I set aside the impugned Order-in-Original and allow the appeal. A.C. is directed to scrutinise their refund claim and sanction the same to the Appellant, either by cash or credit in the RG-23A Register, if the same is otherwise in order." Since the Department has not appealed against the order passed by the Commissi6ner (Appeals), the order passed by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the CESTAT where the refund claim has been filed when the provisions of unjust enrichment came into the force. It is the Department which took Ten years to finalise the refund and to pass an order first time after 10 years in 1997 I agree with the findings of Commissioner (Appeals) that the case falls squarely within the provisions of Section 11B(2)(c) of Central Excise Act, 1944 in which case doctrine of unjust enrichment is not applicable. The Tribunal in case of Commr. of Customs Central Excise, Ahmedabad v. Dura Syntex Ltd reported in 2003 (154) E L T 422 (Tri -Mumbai) has held that "Refund being related to input credit, principle of unjust enrichment not applicable - Proviso (c) to Section 11B(2) of Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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