TMI Blog1990 (11) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... und should not be refused on the ground of unjust enrichment. Only few facts are required to be stated to appreciate the grievance of the petitioners. 3. The petitioner No. 1 is a Company incorporated under the Indian Companies Act and, inter-alia, manufactures paper based decorative laminates. By order dated January 3, 1989, the respondent No. 2 classified the goods under sub-heading 3920.31 as it stood up to February 28, 1988 and thereafter under sub-heading 3920.37 of the Schedule to the Central Excise Tariff Act, 1985. The claim of the petitioners that the classification ought to have been under sub-heading 4818.90 up to February 28, 1990 and thereafter under sub-heading 4823.90 was turned down. The petitioners carried appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down on the ground of unjust enrichment. The Department in the show cause notices referred to the decision of Division Bench of this Court in the case of M/s. Roplas (India) Ltd. and others v. Union of India and others reported in 1988 (38) Excise Law Times 27. The petitioners filed their reply to the show cause notices pointing out that the decision in Roplas case is no longer good law and, in any event, the doctrine of unjust enrichment is not available to the Excise authorities who are the creation of the Statute and who are bound to grant refund in accordance with the provisions of Section 11B(3) of the Act. The Department thereafter did not take any steps for disposal of the refund application and that has given rise to the filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The decision of CEGAT was approved by the Division Bench of this Court by judgment dated October 22, 1990 in Writ Petition No. 4888 of 1989 (M/s. Caprihans India Limited and another v. The Union of India and another) and to which one of us (Pendse, J.) was a party. Apart from the decision of CEGAT, the Department Could not refuse to make refund to the petitioners because the duty sought to be recovered back by the petitioners was paid under protest. Secondly, the petitioners are entitled to claim refund in view of the decision of the Appellate Collector recorded on April 4, 1989 and which was ultimately confirmed by CEGAT on October 5, 1990. Section 11B(3) of the Act provides that the assessee is entitled to the refund as a matter of right ..... X X X X Extracts X X X X X X X X Extracts X X X X
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