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TMI Blog2010 (4) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee accordingly. Pursuant to this advice, the Superintendent on 21-6-1999 issued a letter to the assessee intimating that the provisional assessments had been finalised and that necessary remarks had been made on RT-12s for the aforesaid period. This letter was accompanied by a full statement of the amounts of duty provisionally paid, duty finally assessed, as also the differential amounts of duty for the period of dispute Accordingly, an amount of duty of Rs 23 69 373/- was worked out as excess payment of duty for the period 1995-96 and an amount of Rs. 19,10,366/- worked out as excess payment for the period 1996-97. Upon receipt of intimation of results of final assessments, the assessee informed the Superintendent by letter dated 29-6-1999 that they had already taken credit of the excess amount of duty in their PLA (account current) on 22-6-1999 for the period of dispute A spate of correspondence followed this letter of the assessee wherein the Superintendent asked the assessee to produce relevant records as proof against the bar of unjust enrichment and the assessee maintained that the bar of unjust enrichment was not applicable to the case. On 5-10-1999, the department iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basic facts of this case are not in dispute. The provisional assessments for the period 1995-96 and 1996-97 were finalised in June, 1999. The Superintendent's letter dated 21-6-1999 intimated to the assessee the excess amount of duty paid by them, whereupon the assessee swiftly took credit of the amount in their PLA. The subsequent queries made by the Superintendent on the aspect of unjust enrichment were negatived by the assessee, which led to issuance of the show-cause notice. These facts are not in dispute. 5. We shall now examine the question whether it was necessary for the assessee to claim refund of the amount under Section 11B of the Act. A plethora of decisions have been cited from both sides. In the case of Mafatlal Industries Ltd. 1997 (89) E.L.T. 247 (S.C.), a 9-Judge Bench of the Supreme Court held, in the context of dealing with refund arising out of finalisation of provisional assessment under Rule 9B, that any recovery under sub-rule (5) of Rule 95 would not be governed by Section 11A or Section 11B, as the case may be. However, where the orders passed under sub-rule (5) were appealed against or otherwise questioned in a writ petition or suit, as the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 of the Customs Act. In the case of Allied Photographics, the Apex Court expounded the difference between a claim of refund under Section l and one arising under Rule 9B, by holding as follows: "Section 11B deals with claim for refund whereas Rule 95 deals with making of refund, in which case the assessee has not to comply with Section 11B. Therefore, Section 11B and Rule 9B operate in different spheres and, consequently in Para 104 of the said judgment (Mafatlal Industries), it has been held that in cases where duty is paid under Rule 9B and refund arises on adjustment under Rule 9B(5), then such refund will not be governed by Section 11B. In the said para, it has been clarified that if.an independent re fund claim is made after adjustment on final assessment under Rule 9B(5), agitating the same issues, then such claim would attract Section 11B. This is because when the assessee makes an independent refund claim after final orders under Rule 9B(5), such application represents a claim for refund and, it would not come in the category of making of refund and therefore, the bar of unjust enrichment would apply." 7. In the case of Commissioner v. Standard Drum & Barrel Mfg. Co. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund under Section 11 5(2) of the Act upto 25-6-1999. In other words, such a refund should be allowed without the bar of unjust enrichment. 9. Incidentally, we would also like to refer to the High Court's finding in United Spirits case (supra), which has been relied on by the SDR. The Hon'ble High Court framed the following question of law and answered the same in favour of the Revenue: "Where an amount is deposited pursuant to provisional assessment, will the doctrine of unjust enrichment be applicable to refund consequent upon final assessment?" We find that, where it is held that any refund arising out of finalisation of provisional assessment is liable to be granted without reference to Section 11B(2) up to 25-6-1999, the Hon'ble High Court's decision on the above question in favour of the Revenue is obviously for the period after 25-6-1999. 10. Learned SDR has also claimed support from Sahakari Khand Udyog Mandal Ltd. v. Commissioner - 2005 (181) E.L.T. 328 (S.C.) wherein it was held that the doctrine of unjust enrichment was based on equity and the same could be invoked to deny refund to a person irrespective of applicability of Section 11B of the Central Excise Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serving that no case had been made out by the Revenue that refund was not due to the assessee. On the other hand, in the case of BDH Industries (supra), the question considered by the Larger Bench was whether the assessee could take credit, suo motu, in their PLA CENVAT account the amount of duty paid by them in excess by mistake. The question was not whether any excess amount of duty found upon finalisation of provisional assessment could be suo motu taken as credit in PLA or CENVAT account without reference to the bar of unjust enrichment. We are, therefore, of the considered view that, on the facts of the present case, the view taken by the Larger Bench is not applicable. 14. We do not, however, accept the submission made by the counsel that the Superintendent had by letter dated 21-6-1999 tacitly permitted them to take suo moto credit of the excess duty. The subsequent conduct of the Superintendent is very clear on the records. The Superintendent did ask the assessee to bring forth evidence against the bar of unjust enrichment, thereby meaning that the assessee was required to claim refund in terms of Section 11B. However, the stand taken by the Superintendent cannot be upheld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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