2019 (11) TMI 955 - AT - Central Excise

Refund claim - unjust enrichment - denial of refund claim on the ground that the appellant failed to opt order of provisional assessment of goods - HELD THAT - While the procedure of provisional assessment has been provided for the convenience of the assessee, it is not a mandatory requirement - In the instant case the claim has been filed within the limitation, and therefore, the refund cannot be denied on that count. The appeal of M/s ONGC on this count is allowed. Appeal dismissed - decided against Revenue.

Summary

Issues involved:
1. Denial of refund claim due to failure to opt for provisional assessment of goods.
2. Appeal by Revenue against setting aside of charge of unjust enrichment by Commissioner (Appeals).

Issue 1: Denial of refund claim due to failure to opt for provisional assessment of goods

The appeal was filed by M/s. Oil and Natural Gas Corporation Limited (ONGC) against the denial of a refund claim because the appellant did not opt for the provisional assessment of goods. The appellant paid duty without ascertaining the final amount received, resulting in an excess payment. The original adjudicating authority rejected the refund claim citing the failure to obtain provisional assessment and establish no unjust enrichment. The Commissioner (Appeals) upheld the rejection based on failure to obtain provisional assessment but allowed the appeal on the ground of unjust enrichment. The appellant argued that provisional assessment is procedural and not mandatory, especially when the claim is filed within the limitation period. The Tribunal found that the claim was filed within the limitation, hence the refund cannot be denied solely based on the lack of provisional assessment. The appeal of M/s ONGC was allowed on this ground.

Issue 2: Appeal by Revenue against setting aside of charge of unjust enrichment by Commissioner (Appeals)

The Revenue appealed against the Commissioner (Appeals) setting aside the charge of unjust enrichment. The Tribunal analyzed the situation and referred to a previous decision in the appellant's own case, highlighting the complexities of the case involving the Oil Industries Development Act Cess (OID Cess) and the necessity to determine the actual quantity received in the refinery. The Tribunal emphasized that the amount payable is determined only after the actual quantity is finalized, and provisional payments are made before the finalization. The Tribunal noted that the Revenue's appeal challenging the decision was dismissed by the High Court, and based on the previous decision in the appellant's case, the appeal of Revenue was dismissed. The Tribunal found that the decision in the appellant's own case was applicable in the current situation, leading to the dismissal of the Revenue's appeal.

In conclusion, the Tribunal allowed the appeal of M/s ONGC Ltd. regarding the denial of the refund claim due to the failure to opt for provisional assessment of goods. The appeal by the Revenue against the setting aside of the charge of unjust enrichment was dismissed based on the previous decision in the appellant's case. The judgment provided clarity on the procedural requirements and the complexities involved in determining the actual quantity received in cases involving cess payments under the Oil Industries Development Act.