TMI Blog2016 (11) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... AD], where it was held that the doctrine of unjust enrichment will, therefore, not be attracted to the refunds pertaining to the finalization of provisional assessments for period prior to 25/06/1999 when the linking proviso under Rules 9B(5) of Central Excise Rules 2004 was not existing. The linking provision under proviso to Rule 9B(5) was made by an amendment with effect from 25.06.1999 and will be applicable only w.e.f. 25.06.1999 - the refund cannot be credited to the Consumer Welfare Fund enrichment. The impugned order is set aside and I hold that the appellant is eligible for sanction of refund - appeal allowed - decided in favor of appellant. - Appeal No.E/2013/2016 - FINAL ORDER No.A/31035/2016 - Dated:- 20-10-2016 - Ms. Sulekh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es case rendered by the Apex Court. At that time, the decision of Supreme Court in the case of TVS Suzuki Ltd. had not been pronounced The Adjudicating Authority had earlier sanctioned refund claim of ₹ 29,80,997/- but at the same time ordered to transfer same to Consumer Welfare Fund on the ground that e appellant had not proved that there was no undue enrichment. The appellant filed appeal against the said order, and in the second round of litigation also vide Order-in-Appeal No. 24/2006 dated 04.01.2006, the Commissioner (Appeals) rejected the appeal filed by the appellant. The appellant approached the Tribunal, Bangalore and vide final order No, 1036/2009 dated 03.08.2009, the Tribunal remanded back the case to the Original Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sub-rule (5) has no retrospective effect. 5. On behalf of the department, Ld. the, AR Sh. Guna Ranjan reiterated the findings in the impugned order. He strongly argued that when assessment is finalized after 25.06.1999, the proviso to sub-rule (5) of Rule 9B would come into application and the appellant is bound to establish that the incidence of duty has not been passed on. Having failed to establish that the refund claim is not hit by unjust enrichment, the Commissioner (Appeals) has rightly sanctioned the fund and ordered the amount to be credited to the Consumer Welfare Fund. 6. I have heard both sides. The issue whether unjust enrichment will be applicable to the refund of the duty finalized after 25.06.1999 but pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments under Rule 9B of the Central Excise Rules, 1944 Accordingly the procedure regarding application of unjust enrichment to refunds on finalization of provisional assessments will be applicable to the provisional assessments made after 25-6-1999 and not before that date, The addition of proviso to Rule 9B(5) has not been made with retrospective effect. Based on the ratio of the law laid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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