TMI Blog2007 (9) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... al Order are reproduced below :- 4. The issue involved is as to whether the principle of unjust enrichment is applicable on finalisation of provisional assessment made under rule 9B of the erstwhile Central Excise Rules, 1944 (in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss. 7. The ld. Advocate contended that the present case is squarely covered by the decision of the Supreme Court in the 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 Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise reported in 1992 (60) E.L.T. 24 (S.C.). The respondent respectfully submit that the Hon'ble Tribunal has overlooked the aforesaid decision in case of Poolpandi and this has caused injustice to the respondent. This an error apparent on the face of the record and requires to be rectified the Hon'ble Tribunal. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the record, it is seen that the Commissioner (Appeals) allowed the refund claim following the decision of the Hon'ble Supreme Court in the case of CCE v. Allied Photographics India Limited reported in 2004 (166) E.L.T. 3 (S.C.). The decision of the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Limited came in 2005. In this case, it has been observed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay on similar issue in the case of Standard Drum Barrel Mfg. Co. (supra) held as under :- 33. For all the aforesaid reasons, we hold that the assessing officer was justified in holding that the refund arising on finalization of the provisional assessment on June 8, 1999 was governed by the principles of unjust enrichment contained in Section 11B of the Excise Act as amended by Act 21 of 1998 and the Tribunal erred 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 mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 based on the decision of the Hon'ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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