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TMI Blog2008 (5) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent. [Order] - This appeal is filed by the revenue against the Order-in-appeal No. P-II/PAP/104/2007 dated 25-9-2007. 2. Considered the submissions made by both sides and perused the records. 3. The revenue's contention in the grounds of appeal is as follows: (a) The provisions of Sec.11B(2)(C) of the Central Excise Act, 1944 state that instead of crediting to the Fund, the amount may be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octrine of unjust enrichment is applicable in this case. (b) The CESTAT in its order No. A/601-603/2004-NB(C) dated 1-9-2004 [2004 (174) E.L.T. 41(T)] in the case of M/s. Pearl Polymers Ltd. had observed that "Refund-unjust enrichment-application of-Concessional duty facility availed by voluntarily paying back modvat credit by reversing credit balance as well from PLA-For allowing refund of same, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently on his own is asking for a refund. Therefore, the provisions of unjust enrichment are clearly attracted. Respondents have not proved that they had not passed on the excess credit availed to the ultimate customer. It can be seen from the above and also from the submission made by the ld. SDR that the challenge against the impugned order seems to be misplaced. 4. The facts of this case are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that he has relied upon the decision of the Tribunal on an identical issue. Observations while setting aside the order-in-original are very important which read as under: "From the above, it can be seen that the appellant is not only excluded from the bracket of the principle of unjust enrichment in view of the provisions contained in sub-clause (c) to sub-section (2) of Section 11B, but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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