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TMI Blog2007 (9) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... short "Rules 1944"), refund of duty paid on 1986 to 1990, much before amendment of Rule 9B on 25-6-1999, (when Section I including unjust enrichment was made applicable to Rule 9B provisional assessment cases). The ld. Advocate on behalf of the respondents submits that the Commissioner (Appeals) rightly allowed the appeal of the respondent following the decision of the Hon'ble Supreme Court in the case of CCE v. Allied Photographics Inds. Ltd. - 2004 (166) E.L.T. 3 (S.C.), wherein, it was held that the doctrine of unjust enrichment did not apply to provisional assessment cases pertaining to the period prior to 25-6-99, which has also been accepted by board. He also relied upon the decision of Hon'ble Supreme Court in the case of CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of T.V.S. Suzuki Ltd. (supra) particularly on the issue of provisional assessment and, therefore, the aforesaid decision is not applicable herein. I find that the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd., (supra) also followed the decision of nine judges bench in the case of Mafatlal Industries Ltd. & Org. v. Union of India - 1997 (89) E.L.T. 247 (S.C.). In view of the aforesaid finding of the Hon'ble Supreme Court, in the Sahakari Khand Udyog Mandal Ltd., the matter is liable to be examined afresh in respect of unjust enrichment. At this stage, the ld. Advocate fairly submits that the case related to very old about 16 years, therefore, it is difficult to establish the evidences in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. 4. Learned Advocate on behalf of the respondents at the time of hearing referred the above said case laws of the Hon'ble Supreme Court In addition to that, he submits that the Hon'ble High Court of Bombay in the case of CCE, Mumbai-II v. Standard Drum & Barrel Mfg. Co. reported in 2006 (199) E.L.T. 590 (Bom.) decided the similar issue in favour of the assessee. He also submits that the Tribunal in the case of CC, Ahmedabad v. Hindalco industries Ltd. reported in 2006 (199) E.L.T 481 (Tri-Mumbai) also held in favour of the assessee on the similar issue. He submits that in this case, the Tribunal overlooked the decision of the Hon'ble Supreme Court, which is squarely applicable on the issue, and therefore it is an error, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble Supreme Court that doctrine of unjust enrichment is based on equity and therefore, irrespective of applicability of section 11B of the Act, the doctrine can be invoked. It has also been observed that in absence of statutory provisions the person cannot claim or retain undue benefit. It is seen that the Tribunal while passing the final order followed the said decision. The learned Advocate at the time of hearing of the present application relied upon the decision of the single member bench of the Tribunal in the case of Hindalco industries Limited (supra) on the same issue, held as under :- "As regards the decision in the case of Sahakari Khand Udyog Mandal Limited (cited supra), its ratio no doubt runs counter to the rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in holding to the contrary. In this view of the matter, it is not necessary to go into the question as to whether the decision of the Apex Court in the case of Sahakari Khand Udyog Mandal Limited (supra) is applicable to the facts of the present case, or not." 8. With regard to the scope of rectification of mistake of Final Order, the Hon'ble Supreme Court in the case of CCE, Calcutta v. A.S.C.U. Ltd. reported in 2003 (151) E.L.T. 481 (S.C.) held as under : "7. This Court has in two judgments viz. T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay v. M/s Volkart Brothers, Bombay [1971 (2) 3CC 526] and Commissioner of Income Tax (CNTL), Ludhiana, v. Hero Cycles Pvt. Ltd., Ludhiana [1997 (8) 3CC 502] considered the extent to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. However, if a decision is based on more than one material, then merely because in the process of arriving at the final decision, reliance was placed on some material which could not have been used it can never be said that in the final decision there is a mistake apparent from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used" 9. It is seen that in the present case, the Tribunal by Final Order dated 19-1-2007 followed the decision of the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Ltd., (supra). So, it is apparent on the face of record that the final order of the Tribunal is not based on irrelevant material and in other words it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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