(1.) ALL these six appeals arise out of order in appeal dated 23/08/04 that allowed three appeals of the revenue and dismissed three appeals of the appellant.
(2.) THE relevant fact that arise for consideration are appellant is a manufacturer of Copper concentrate and clear the copper concentrate to their sister concern on payment of duty. Since, the copper concentrate cleared from the appellant's factory has to be valued based on the concentration of the copper in the consignment cleared from the factory, the appellants applied for and were working under the provisional assessment from 1996. Subsequent to the finalization of provisional assessment, appellants were sanctioned three refund claims by the adjudicating authority. The same adjudicating authority for the subsequent period rejected the refund claim of the appellant on the ground of unjust enrichment. Department and appellant both went in appeal before the Commissioner (Appeals). Learned Commissioner (Appeals) dismissed the appeals filed by the appellant on the ground of unjust enrichment and allowed the appeals filed by the revenue on the very same ground. Hence these appeals.
(3.) LEARNED advocate appearing on behalf of the appellant submits that the issue is now well settled by the judgement and decision of the Larger Bench in the Hon'ble Supreme Court in the case of CCE, Mumbai - II v. Allied Photography's India Ltd. as reported at . It is his submission that all these matters may be remanded back to the adjudicating authority to consider the refund claim in light of Larger Bench decision of the Hon'ble Supreme Court which has settled the law, -that in the case of provisional assessment, the question of unjust enrichment does not arise. Learned SDR on the other hand submits that there is no objection for remanding the matter back, but there should not be any condition set on the lower adjudicating authority.