TMI Blog2005 (2) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... not be applicable in case for refund of the duty where goods were captively consumed. The amount involved in this appeal is Rs. 55,92,105/- plus Rs. 1,39,323/-. This appeal is pending being restored consequent to order in under petition 842/2000 of Mumbai High Court. (b) Appeals No. E/3142-43 are filed by the Assessee M/s Swan Mills P. Ltd. against common Order-in-Appeal No. DK (1815-1816) 139 140/M1/2002, dated 28-3-2002. In these two appeals the Commissioner (A) has set aside Orders-in-Original No. F1/1/2001, dated 1-1-2001 sanctioning refund amount Rs. 55,92,105/- plus Rs. 1,39,323/- and No. F1/2/2001, dated 9-1-2001 sanctioning refund Rs. 29,25,044/- on the ground of limitations of period prescribed under Section 11B of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated time limit prescribed under Section 11B of Central Excise Act, 1944. (II) The issue of Unjust Enrichment was not dealt properly as per the law. This find a mention in the para 20 of the Commissioner (A)'s order No. SDK(1815-1816) 139 140/M1/2002, dated 28-3-2002. 3. Commissioner (A) order dated 28-3-2002 under para 21 found that Hon'ble Supreme Court in case of Mafatlal Inds. has settled the law regarding limitations. - 1997 (89) E.L.T. 247 as that in case of payment of duty under mistake of law or even when levy of such duty are found to be unconstitutional any claim arising from such levy of Central Excise duty will necessarily required to be regulated only under the provision of Section 11B of the Central Excise Act 1944, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no provisional assessment under Rule 9B of the C. Ex. Rules, 1944. On a query from Hon'ble Bench, learned Advocate could not produce any such order and conceded that clearances for impugned period were final. The issue is remained settled by Hon'ble Supreme Court in 1997 (92) E.L.T. 309 (S.C.); 2000 (118) E.L.T. 627 (Tri.-LB) and same is followed in case of Hindustan Wires Ltd. v. Commissioner of C. Ex., Delhi-II, 2003 (151) E.L.T. 679 (Tri.-Del.). (b) For the period from April 94 to March 95 refund was claimed on 2-7-96 and for the period September 96 to May 97 refund claim was filed on 7-8-98. This factual matter is not disputed by the appellants which makes it very clear that refund claims in both the cases have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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