2005 (12) TMI 126 - AT - Central Excise

Summary

Issues involved: Whether the principles of unjust enrichment under Section 11B(2) & (3) apply to the case involving a refund arising from the finalization of provisional assessment under Rule 9B of the Central Excise Rules, 1944.

Analysis:
1. The issue at hand revolves around the applicability of the principles of unjust enrichment to a refund arising from the finalization of provisional assessment under Rule 9B. The respondents argue that unjust enrichment does not apply in this case, citing specific decisions. On the other hand, the department contends that the amendment to Rule 9B subjects refunds from provisional assessment to unjust enrichment provisions. The Tribunal notes that the refund in question arose upon finalization of the provisional assessment after the amendment to Rule 9B, thus making the unjust enrichment principles applicable.

2. It is observed that the duty amount was not shown separately in the invoices by the respondents. Consequently, under Sections 12A & 12B of the Central Excise Act, 1944, there is a presumption that the additional duty burden was passed on to the buyers. Based on this legal position, the Tribunal concludes that the lower appellate authority's decision was incorrect and illegal. Therefore, the Tribunal sets aside the impugned order and reinstates the Order-in-Original issued by the original authority.

3. In light of the above analysis, the appeal filed by the department is allowed. The Tribunal's decision emphasizes the importance of complying with the provisions related to unjust enrichment in cases involving refunds from provisional assessments. The judgment clarifies the legal position regarding the passing on of duty burden to buyers and the implications of not separately showing duty amounts in invoices.