JUDGMENT 1. The Appellant is aggrieved by an order dated 2nd September, 2009 passed by the Custom, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata in Excise Appeal No. EDM-16/2005. 2. The substantial question of law led by the Appellant is (i) Whether the Custom and Central Excise was correct in law in coming to the conclusion that the question of unjust enrichment has come to an end after the decision of the Division Bench of the Gauhati High Court in Civil Rule No. 3499/1991 decided on 13th July, 1991 and it was no longer res integra in so far as the Assistant Collector of Central Excise is concerned. 3. The Appellant is the manufacturer of plywood and aqua solution of urea and phenol. The question raised is whether the captive consumption of aqua solution of phenol and urea was excisable to Central Excise duty under the Tariff entry of the Central Excise and Salt Act, 1944 (now the Central Excise Act). 4. The view taken by the Division Bench of this Court in Civil Rule No. 3499/1991 filed by the Appellant was that urea formaline and phenol formaline were not excisable under the Central Excise Act and, therefore, an order was passed for refund as claimed by the Appellant within a period of three months. Before the expiry of three months i.e. sometime in September, 1991 by virtue of the Finance Act an amendment was introduced in the Central Excise Act incorporating Section 11Brelating to unjust enrichment. Section 11B reads as follows- Section 11B. Before the expiry of three months i.e. sometime in September, 1991 by virtue of the Finance Act an amendment was introduced in the Central Excise Act incorporating Section 11Brelating to unjust enrichment. Section 11B reads as follows- Section 11B. Claim for refund of duty (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the (Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise) before the expiry of (one year) (from the relevant date) (in such form and manner) as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of Sub-section (2) substituted by that Act. 5. In view of the statutory amendment, the Assistant Collector reconsidered the matter and passed an order on 12th November, 1991 rejecting the claim for refund on the ground that the Appellant had realized the duty on the captive consumption of the items. 6. Feeling aggrieved by the order passed by the Assistant Collector on 12th November, 1991 the Appellant preferred a writ petition in this Court which came to be dismissed by the learned Single Judge. Against the decision of the learned Single Judge the Appellant preferred a writ appeal which was disposed of by the Division Bench by an order dated 2nd May 2000. While disposing of the writ appeal, the Division Bench noted the contention of learned Counsel for the Appellant that the refund applications are yet to be disposed of and that the Assistant Collector should dispose of the applications expeditiously in accordance with law. 7. While disposing of the writ appeal, the Division Bench noted the contention of learned Counsel for the Appellant that the refund applications are yet to be disposed of and that the Assistant Collector should dispose of the applications expeditiously in accordance with law. 7. Pursuant to the order passed by the Division Bench on 2nd May, 2000 the Assistant Commissioner passed an order on 20th August, 2003 accepting the claim of the Appellant and directed refund of an amount of Rs. 51,33,004.71. Against the order passed by the Assistant Commissioner a revision petition was filed. By an order dated 24th March, 2004 the Commissioner (Appeals) of Central Excise set aside the order passed by the Assistant Collector, and directed him to reconsider the entire issues. 8. Against the order of the Commissioner, a further review petition was filed before the Commissioner of Customs and Central Excise (Appeals) who by an order dated 31st August, 2004 upheld the view taken by the first appellate authority requiring the Assistant Commissioner to reconsider the matter. 9. Feeling aggrieved, the Appellant preferred an appeal before the Tribunal which came to be disposed of by the impugned order. 10. The submissions of learned Counsel before the Tribunal and before us was simply this that in view of the decision of the Supreme Court in Triveni Chemicals Limited v. Union of India 2007 (207) ELT 324 (SC) since the proceeding for refund had come to an end after the decision of the Division Bench of this Court on 13th July, 1991, the Assistant Commissioner could not look into the matter of unjust enrichment. 11. In our view the submissions of the Appellant is not well founded. The very fact that the Parliament intervened in the matter by introducing Section 11B to the Central Excise Act read with proviso. This Section clearly suggests that the application filed by the Appellant shall be treated as filed under the proviso to Section 11B of the Act. The Assistant Commissioner ought to have considered the application as a fresh application. This disentitles him to look into the question of whether the duty collected from the Appellant as the entire matter came to an end with the passing of the order by the Division Bench of this Court on 13th July, 1991. The Assistant Commissioner ought to have considered the application as a fresh application. This disentitles him to look into the question of whether the duty collected from the Appellant as the entire matter came to an end with the passing of the order by the Division Bench of this Court on 13th July, 1991. The very terms of the order specifically mentioned that the Assistant Collector would reconsider the matter in the light of the observations and conclusions of the Division Bench. It is, therefore, incorrect to suggest that the matter concluded by the orders passed by the Division Bench. 12. That apart, the very fact that the matter was again taken up by the Appellant before the Division Bench which considered the appeal and dismissed by an order dated 2nd May, 2000 clearly shows that the issue of unjust enrichment was very much alive in so far as the Respondents were concerned. Under these circumstances it would be incorrect to hold that the case of the Appellant is covered by the decision of the Supreme Court in Triveni Chemicals Limited. 13. Under the circumstances, the issue was very much alive. The Assistant Commissioner was well within his powers to decide the issue of unjust enrichment. 14. That being the position, the substantial question law framed is answered in the affirmative. 15. The appeal is disposed of accordingly.