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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 ..... nt case. In any case, what was done by the assessee has not been shown to be prejudicial to the Revenue. In the result, this appeal filed by the Revenue is dismissed . - E/46/2001 - A/129/2010-WZB/C-II/EB - Dated:- 20-4-2010 - S/Shri P.G. Chacko, Member (J) and S.K. Gaule, Member (T) REPRESENTED BY: Dr. T. Tiju, SDR, for the Appellant. S/Shri Prakash Shah with J.H. Motwani, Advocates, for the Respondent. [Order per P.C. Chacko, Member (J). - This appeal filed by the department is directed against the order of the lower appellate authority. 2. During the period from April, 1995 to March, 1997, the assessee was paying duty on their final products on the basis of provisional assessments. The pricelists filed by them came to be approved eventually by the Assistant Commissioner as per order dated 17-6-1999, wherein, higher PME (Post-Manufacture Expenses) deductions than what was claimed was allowed for the periods 1995-96 and 1996-97. In the said order, The Assistant Commissioner advised the Superintendent of Central Excise of the Range concerned to complete finalisation of the assessments tinder Rule 9 read with Rule 173-I and intimate to the assessee accordingly. Pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court and High Courts in support of his contention that, on the facts of this case, the assessee was required to file a refund claim under Section 11B of the Act and, thereunder, prove that the incidence of the excess amount of duty had not been passed on to any other person. On the other hand, the learned counsel for the respondent has also relied on case law to show that there was no need of claiming refund under Section 1 inasmuch as the doctrine of unjust enrichment was not applicable to any refund arising out of finalisation of provisional assessment. The learned counsel has also submitted that the credit of the excess amount of duty was taken in PLA as the assessee was tacitly permitted to do so. It is submitted that the Superintendent's letter intimating the results of finalisation of provisional assessments and furnishing the amounts of excess duty paid for the periods 1995-96 and 1996-97 was in the nature of a permission to take credit of such amounts. The learned SDR has contested this claim by pointing out that the Superintendent himself subsequently called upon the assessee to adduce evidence against the bar of unjust enrichment. 4. The basic facts of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 11B of the Act. 6. In the case of Oriental Exports v. Commissioner - 2001 (127) E.L.T. 578 (Tri.-Del.), this Tribunal had held that the doctrine of unjust enrichment was not applicable to refund arising out of finalisation of provisional assessments under Section 18 of the Customs Act. In this case, the Tribunal noted the similarity of the provisions of Section 18 of the Customs Act to those of Rule 9B of the Central Excise Rules, 1944 and accordingly followed the ratio of the Hon'ble Supreme Court's decision in Mafatlal Industries case (supra). A civil appeal filed by the departrnent against the Tribunal's decision in Oriental Exports case was dismissed by the Apex Court vide Commissioner v. Oriental Exports - 2006 (200) E.L.T. A138 (S.C.). The Hon'ble Supreme Court, in this case, considered numerous earlier decisions of the court and ultimately held that the point in issue was squarely covered by the decision in Commissioner v. Allied Photographics India Ltd. - 2004 (166) E.L.T. 3 (S.C.). Thus, it came to be held that the bar of unjust enrichment was not applicable to refunds arising out of finalisation of provisional assessments under Section 18 of the Customs Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel on the strength of a decision of the Hon'ble High Court, which was cited by the SDR. That decision is United Spirits Ltd. v. Commissioner - 2009 (240) E.L.T. 513 (Bom.) = 2009-TIOL-316-HC-MUM-CUS, dated 25-6-2009. In the context of considering the proviso to sub-rule (5) of Rule 913, the High Court held that any excess amount of duty arising out of finalisation of provisional assessment under sub-rule (5) of Rule 9B had to be refunded till the proviso was added. The proviso which was considered by the High Court and which we have repeatedly referred to in this order reads thus: "Provided that, if an asses is entitled to a refund, such refund shall not be made to him except in accordance with the procedure established under sub-section (2) of Section 11B of the Act." Obviously, the Hon'ble High Court was having in its mind the provisions of sub section (2) Section 11B of the Act and those of sub-rule (5) of Rule 9B of the Central Excise Rules when it held that any excess amount of duty arising out of finalisation of provisional assessment should be refunded till the proviso was added. It would mean that there was no requirement of claiming refund under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s has been made on or after 25-6-1999 in asmuch as the proviso to sub-rule (5) of Rule 9B which was introduced on 25-6-1999 made it obligatory for the assessee to claim refund of any excess duty paid by them, under sub-section (2) of Section 11B of the Act. This legal position would continue through out the period during which the Central Excise Rules, 1944 were in force. In the instant case, admittedly, the finalisation of provisional assessments was done prior to 25-6-1999 and, therefore, the assessee was entitled to refund of the excess duty paid by them. 13. The question now arises whether it was open to the assessee to take suo motu credit of the amount in their PLA. in this context, learned SDR has re lied on the Tribunal's Larger Bench decision in BDH Industries case whereas the learned counsel has claimed support from the Tribunal's decision in ITI Ltd. v. Commissioner - 2005 (180) E.L.T. 273 (Tri-Del.). In the case of ITI Ltd., the question considered was whether the assessee could take suo motu credit of the differential amount of duty in their PLA consequent upon finalisation of provisional assessment. The Tribunal held in favour of suo motu credit after observing that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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