TMI Blog2017 (1) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... EW DELHI] on the issue of applicability of unjust enrichment. It is evident that the respondent themselves stated the facts for non-applicability of unjust enrichment and in this context, the Adjudicating Authority held that the refund is hit by unjust enrichment. The lower authorities have failed to consider the Tribunal's order dated 20.01.2005 in proper perspective in the context of the facts and circumstances of the case - It is appropriate that the Commissioner(Appeals) should have examined the facts of the case in light of the decision of the Tribunal vide order dated 20.01.2005 and to decide afresh after following the principles of natural justice. Appeal filed by revenue is allowed by way of remand. - E/715/11 - FO/A/76410/16 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-Original and the impugned order and submitted that since in the second round of litigation both the lower authorities decided the issue but did not adduce any reasons for the decision on the issue as to whether the amount paid through the Proforma Credit and MODVAT Credit Scheme is permissible and also whether any tenable distinction is made through P.L.A. and from credit accounts existed which would render the refund claim hit by the doctrine of unjust enrichment and liable to be rejected. He further argued that before the lower appellate authority both the parties to the litigation had joint issues and accordingly, the Commissioner(Appeals), should have addressed the same. He further argued that the amount of Proforma Credit/MODVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal's decision in the case of Commissioner of Customs Central Excise, Bhopal Vs. Bombay Burmah Trading Corpn.Ltd. [2005 (190) ELT 40 (Tri.-Del.) and stated that the above judgement squarely applies to the facts of the present case and prayed for upholding the impugned order and rejection of the Revenue's appeal. 5. Heard both sides and perused the case records. 6. The Adjudicating Authority allowed the refund partly and transferred the amount to the Consumer Welfare Fund in terms of Section 11B (2) read with Section 12B of Central Excise Act, 1944. The respondent assessee contended before the Adjudicating Authority that duty incidence of Aquous Solution of U.F. Resin P.F. Resin had not been included in the cost of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment applies to the refund claims arising out of finalization of the provisional assessment for the financial years 1995-96 and 1996-97. These assessments have been finalized on 29/3/2000 when a proviso has been inserted in sub-rule (5) of Rules 9B. The effect of this proviso is that if an assessee becomes entitled to a refund on account of provisional assessment being finalized such refund shall be subjected to the bar of unjust enrichment and the refund of the said amount will be given to the claimant only if the incidence of duty has not been passed on by him to any other person. As the assessments have been finalized for these two financial years after the amendment carried out in Rule 9B(5), the refund arising on account of fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to its enactment. There having been no vested right, conferred on a manufacturer for refund, the proviso does not take away any such right . The learned advocate has also relied upon the decision in the case of Abdul Rahiman Rowther Co. The decision first of all does not mention as to when assessments were finalized i.e. prior to the amendment of rule 9B (5) or thereafter. Moreover, the decision has been passed by a Single Member Bench which is not binding on a Division Bench of the Tribunal. Further, a Division Bench of the Tribunal has already taken a decision in the case of Korex India Ltd. We, therefore, hold that refund claim arising out of finalization of provisional assessment for the financial years 1995-96 and 1996-97 will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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