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Commissioner of Central Excise, Mumbai-III Versus FGP Ltd. (Vice-Versa)

2016 (9) TMI 1054 - CESTAT MUMBAI

Refund claim - out of the refund of approximately ₹ 91.99 lakhs,Commissioner (Appeals) allowed the refund claim of ₹ 75 lakhs - goods were assessed provisionally - duty paid under protest - unjust enrichment has not been properly satisfied by the appellant-assessee - Held that:- this has no merits inasmuch that there is no dispute that the clearances affected by the appellant-assessee had been under provisional assessment as per Rule 9B of the erstwhile Central Excise Rules, 1944. Un .....

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of bringing the question of unjust enrichment cannot be applied for rejecting the refund claims arising out of provisional assessment. On this ground, we hold that the Revenue's appeal is devoid of merits and is rejected. - Reversal of Modvat credit - inputs used in manufacture as intermediate products were exempted from payment of duty - Held that:- the appellant-assessee had used this credit for discharging the duty liability on the intermediate products which were held subsequently as non .....

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cal) Shri Ajay Kumar, Joint Commissioner (AR), for Revenue Shri M.P. Baxi, Advocate, for assessee ORDER These two appeals are filed by the Revenue as well as the appellant-assessee against the very same order-in-appeal. Accordingly, both the appeals are taken up for disposal by a common order. 2. The issue involved in this case is that during the period 29.2.1988 to 5.11.1990, the appellant-assessee was engaged in the manufacture of "chopped strand mat" (hereinafter referred to as the .....

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y the lower authorities in favour of the appellant-assessee who immediately filed refund claims of the amounts which were paid by them "under protest". The Assistant Commissioner allowed the refund claims, but credited the same to the Consumer Welfare Fund on the ground that the appellant-assessee has not been able to pass the hurdle of unjust enrichment. On an appeal, the first appellate authority, out of the refund of approximately ₹ 91.99 lakhs, allowed the refund claim of  .....

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t the goods were assessed provisionally. He would then draw our attention to the provisions of Rule 233B of the erstwhile Central Excise Rules, 1944 and submit that once a duty is paid under protest, the question of provisional assessment does not arise. It is his submission that unjust enrichment is also a question which has not been properly satisfied by the appellant-assessee and the provisions of Section 11B would be applicable in this case. He would rely upon the decisions of the Hon'bl .....

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t arising as refund out of finalization of the provisional assessment will not attract the hurdle of unjust enrichment as hurdle of unjust enrichment was brought into Rule 9B in 1999, while they have filed the refund claims in 1991. He would submit that the law is now squarely settled on this issue. 5. On consideration of the submissions made by both sides, we find that as regards the Revenue's appeal against the sanctioning of refund claim of ₹ 75 lakhs, this has no merits inasmuch th .....

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