HINDUSTAN LEVER LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) HEARD both sides.

(2.) THIS is an application for rectification of mistake allegedly crept in the impugned order dated 15.2.2005 passed by this Tribunal vide Order No. A -319/WZB/2005 C -IV. The facts of the case would show that an application for refund of Rs. 3,72,977/ - filed by the assessee was rejected on the ground of bar of unjust enrichment under Section 11B of the Central Excise Act. This Tribunal also took a similar view in an appeal filed by the assessee and rejected the same. It is observed by the Tribunal that a refund claim is admissible only when the bar of unjust enrichment is caused. No evidence is produced by the appellant in order to rebut the presumption that the incidence of duty has been passed on.

(3.) THE counsel for the appellants while relying upon the decision in the case of Commissioner of Central Excise, Mumbai II v. Allied Photographics India Ltd. has contended that when a refund claim was made consequently to finalization of provisional assessment as such Rule 9B of erstwhile Central Excise Rules, 1944 is applicable rather than Section 11B of Central Excise Act. This plea is fortified by the Apex Court decision in the above cited decision. Whereas, the impugned order was based on the decision of the Apex Court in the case of Mafatlal Industries . According to the counsel for the applicant if Rule 9B is applied there is no need to prove unjust enrichment and the department is bound to refund the amount. Whereas, Section 11B attracts the principle of unjust enrichment.