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M/s United Phosphorous Ltd. Versus Commissioner, Central Excise & Service Tax, Surat-II

2016 (1) TMI 271 - CESTAT AHMEDABAD

Denial of refund claim - Unjust enrichment - finalisation of provisional assessment - Held that:- In view of the decision of the Larger Bench of the Tribunal in the case of Panasonic Battery India Co. Ltd (2013 (9) TMI 652 - CESTAT AHMEDABAD ), unjust enrichment will not be applicable prior to 25.06.1999. The refund claim for the period on or after 25.06.1999 is required to be considered in the light of the decision of Hon'ble Gujarat High Court [2008 (10) TMI 597 - GUJARAT HIGH COURT]. - refund .....

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P.K. Das, Member (Judicial) And Mr. P.M. Saleem, Member (Technical) For the Petitioner : Shri P. Paranjape, Advocate For the Respondent : Shri Alok Srivastava, Authorised Representative ORDER Per: P.K. Das After hearing both the sides and on perusal of the records, we find that the main contention of the learned Advocate for the Appellant is that they have filed this appeal on a limited issue of rejection of refund claim of ₹ 1,01,37,551.00 for the period December 1997 to September 2000. .....

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he Larger Bench of the Tribunal in the case of CCE & ST., Vadodara-II Vs M/s Panasonic Battery India Co. Ltd - 2013-TIOL-1367-CESTAT-AHM-LB held that the principle of unjust enrichment will not be applicable for refund arising out finalisation of provisional assessment pertaining to the period prior to 25.06.1999, even if assessment are finalised after 25.06.1999. The relevant portion of the said decision is reproduced below:- 8. After analyzing the law laid down by Supreme Court in the case .....

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eld that department is bound by law to make the refund without any claim being required to be filed for the period up to 12-7-2006. Entitlement to refund and finalization of provisional assessment under Rule 9B of the Central Excise Rules, 1944 is independent from the provision of refund under Section 11B of the Central Excise Act, 1944. Even under the amendment made by Notification No. 45/99-C.E. (N.T.), dated 25-6-1999 only the procedure established under sub-section (2) of Section 11B of Cent .....

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id down by Hon ble Supreme Court in the case of CCE, Mumbai-II v. Allied Photographics Ltd. (supra) and Gujarat High Court in the case of Commissioner of Customs v. Hindalco (supra), the doctrine of unjust enrichment will, therefore, not be attracted to the refunds pertaining to the finalization of provisional assessments for period prior to 25-6-1999 when the linking proviso under Rules 9B(5) of Central Excise Rules, 1944 was not existing. The linking provision under proviso to Rule 9B(5) was m .....

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