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2015 (11) TMI 1333 - CESTAT NEW DELHI

2015 (11) TMI 1333 - CESTAT NEW DELHI - TMI - Denial of refund claim - Unjust enrichment - refund arising out of finalisation of provisional assessment - Held that:- Even in the case of CC Vs. Hindalco Industries Ltd. (2008 (9) TMI 372 - HIGH COURT OF GUJARAT AT AHMEDABAD) the Gujarat High Court only stated that no provision existed in section 18 of the Customs Act,1962 which would permit Revenue to invoke principles of unjust enrichment in relation to duty paid in excess, found to be so, upon f .....

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nion of India (1996 (12) TMI 50 - SUPREME COURT OF INDIA) which laid down the principles of unjust enrichment as law of the land. - doctrine of unjust enrichment is applicable even in respect of raw materials to be consumed it, settled by Supreme Court in the case of Union of India Vs. Solar Pesticides Pvt. Ltd. (2000 (2) TMI 237 - SUPREME COURT OF INDIA ).

It is not in dispute that the burden to establish that the burden of duty has not been passed on to any other person squarely re .....

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Mr.Jatin Mahajan, Advocate For the Respondent : Mr. Rakesh Khanna, DR ORDER Per Mr. R.K. Singh : Appeal is filed against Order-in-Appeal dated 03.08.2010 which upheld the Order-in-Original dated 05.09.2009 in terms of which out of the refund claim of the appellant amounting to ₹ 1,11,823/-, ₹ 18,378/- was not found to be admissible and the remaining amount of ₹ 93,445/- was ordered to be credited to the Consumer Welfare Fund on account of the doctrine of unjust enrichment. The .....

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provisional assessment was finalised vide Order-in-Original No.7/2006 dated 20.10.2006. The provisional assessment was made on 25.10.2005 and 11.07.2006 which was well before the amendment in section 18 of the Customs Act, 1962 incorporating the doctrine of unjust enrichment as the said amendment was w.e.f. 13.07.2006 and therefore the principles of unjust enrichment were not applicable with regard to refund arising out of finalisation of provisional assessment. It also stated that the goods on .....

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ment of Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India [1997 (89) ELT 247 (SC)]. It also cited the judgement of Supreme Court in the case of CCE Vs. Allied Photographic India Ltd. [2004 (166) ELT 3 (SC)], wherein it was held that even for refund claim made after finalisation of assessment, Section 11B of Central Excise Act, 1944 is required to be complied with in terms of para 104 of the Supreme Court judgement in the case of Mafatlal Industries Ltd. Vs. Union of India .....

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ronounced. The ratio of the judgement of Supreme Court in the case of Commissioner of CCE Vs. Allied Photographic India Ltd. (supra) wherein it was stated that the said doctrine is applicable even in case of finalisation of provisional assessment is applicable to the present case too. The appellant cited several judgements like in the cases of CC, Kandla Vs. Hindustan Zinc Ltd. [2009 (235) ELT 629 (Tri-LB)], CC Vs. Hindalco Industries Ltd. [2008 (231) ELT 36 (Guj)] and Hindustan Petroleum Corpor .....

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