Customs, Excise and Gold Tribunal - Delhi
Cce vs Golden Rolls Pvt. Ltd. And Supermix ... on 19 January, 2007
Equivalent citations: 2007(116)ECC556, 2007ECR556(TRI.-DELHI)
ORDER P.K. Das, Member (J)
1. Common issue is involved in these appeals, therefore, both are being taken up together for disposal.
2. In these cases, the adjudicating authority sanctioned the refund claims but the same were credited to the Consumer Welfare Fund. In the impugned order, the Commissioner (Appeals) set aside the adjudication order and allowed the appeals of respondents
3. Heard both the sides and perused the record.
4. The issue involved is as to whether the principle of unjust enrichment is applicable on finalization or provisional assessment made under Rule 9B of the erstwhile Central Excise Rules, 1944 (in short "Rules 1944"), refund of duty paid on 1986 to 1990, much before amendment of Rule 9B on 25.6.99 when Section, (11B including unjust enrichment was made applicable to Rule 9B Provisional assessment case) The ld. Advocate on behalf of the Respondents submits that the Commissioner (Appeals) rightly allowed the appeal of the respondent following the decision of the Hon'ble Supreme Court in the CCE v. Allied Photographics Inds. Ltd. , wherein, it was held that the doctrine of unjust enrichment did not apply to provisional assessment cases pertaining to the period to 25.6.99, which has also been accepted by board. He also relied upon the decision of Hon'ble Supreme Court in the case of CCE, Chennai v. T.V.S Suzuki Ltd. 2003 (57) RLT 731 (SC). It is the contention of the ld. advocate that the case of T.V.S. Suzuki Ltd. (supra) was decided by the Supreme Court following the nine judges bench of the court in the cases of Mafatlal Industries Ltd. and Ors. v. Union of India.
5. The ld. DR relied upon the decision of the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE
6. After hearing both the sides and on perusal of the record, I find that the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. (supra) held as under:
From the above discussion, It is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases in opinion, therefore, irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss.
7. The ld. Advocate contended that the present case is squarely covered by the decision of the Supreme Court in the case of T.V.S. Suzuki Ltd. (supra) particularly on the issue of provisional assessment and, therefore, the aforesaid decision is not applicable herein. I find that the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. (supra) also followed the decision of nine judges bench in the case of Mafatlal Industries Ltd. and Ors. v. Union of India . In view of the aforesaid finding of the Hon'ble Supreme Court, in the Sahakari Khand Udyog Mandal Ltd. the matter is liable to be examined afresh in respect of unjust enrichment. At this stage, the ld. Advocate fairly submits that the case related to very old about 16 years, therefore, it is difficult to establish the evidences in respect of the unjust enrichment. He submits that they will try to give the documents as available. As such, the impugned order is set aside and the matter is remanded back to adjudicating authority to examine the evidences in respect of unjust enrichment, as contended by the ld. Advocate. The appeal is allowed by way of remand.
(Dictated and pronounced in open Court)