Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Of Central Excise ... vs Gokak Mills on 7 November, 2005
Equivalent citations: 2006(105)ECC230, 2006ECR230(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
Page 0231
1. This appeal arises from Order-in-Appeal No. 414/2003 CE dated 20.11.2003. The Commissioner has held as follows:
I have gone through the records of the case carefully. The refund has arisen consequent to finalisation of provisional assessment during the period 01.04.99 to 31.03.2000. There was amendment of Rule 9B w.e.f. 25th June 1999. The fact of the amendments is the concept of unjust enrichment would be applicable to all provisional assessment w.e.f. 5.6.99. It is very clear that for the period prior to 25.06.99 unjust enrichment would not be applicable. In this particular case, the appellant is entitled for the benefit of refund upto 25.06.99 and the amount upto this date cannot be credited to the Consumer Welfare Fund, as unjust enrichment is not applicable. As regards the refund rising subsequent to 25.06.99 and upto 31.03.2000 unjust enrichment concept is clearly applicable in view of the amendment of Rule 9B. The adjudicating authority should quantify the refund due till 25.06.99 and sanction the same to the appellant. As regards the balance the principle of unjust enrichment would apply.
I partially allow the appeal to the extent indicated above.
2. Revenue is aggrieved with his order. None have appeared for Revenue.
3. I have gone through the records and find that the Commissioner has rightly held that the doctrine of unjust enrichment is not applicable in respect of refunds prior to 25.06.1999. As per the records, the refund has arisen as a result of finalisation of provisional assessment. The issue is covered by the Apex Court's judgment rendered in the case of CCE v. TVS Suzuki reported in 2001 (156) ELT 161 (SC). Similar view has been expressed by the Tribunal in the case of CCE v. U.P. Twiga Fibre Glass Ltd. reported in 2003 (55) RLT 284 (T). In view of these judgments, the issue is covered in favour of the assessee. There is no merit in the appeal and same is rejected.
(Pronounced and dictated in open Court)