2005 (3) TMI 365 - AT - Central Excise

Summary

Issues:
1. Dispute regarding appellant's sales to its holding company and provisional assessment of goods.
2. Applicability of unjust enrichment in the case of refund.
3. Interpretation of Apex Court's judgment in CCE v. T.V.S. Suzuki Ltd.
4. Finalization of provisional assessments post the 1999 amendment.

Analysis:
1. The dispute in the case revolves around the appellant's sales to its holding company, where goods were provisionally assessed at the time of removal from their factory. Subsequently, in 2000, the provisional assessments were finalized, leading to a refund of approximately Rs. 21 lakhs to the assessee.

2. The main contention raised by the Revenue is the applicability of unjust enrichment in the case of the refund. The Revenue argues that the duty liability had been passed on to the buyer at the time of sale, making the refund ineligible as per the provisions of unjust enrichment post the 1999 amendment to Rule 9.

3. The appellant's counsel, however, relies on the judgment of the Apex Court in CCE v. T.V.S. Suzuki Ltd. to argue that the present refund falls outside the scope of unjust enrichment. The counsel highlights a specific paragraph from the judgment to support this argument, emphasizing that the restrictions in Section 11A and Section 11B would not apply to refund claims following the finalization of provisional assessment orders before the 1999 amendment.

4. Upon examining the records and relevant case law, the Tribunal concludes that the duty liability was indeed passed on to the buyer, rendering the Apex Court's judgment inapplicable as the provisional assessments were finalized only after the 1999 amendment. Consequently, the Tribunal allows the appeal of the Revenue, setting aside the impugned order in favor of the Revenue.