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TMI Blog2010 (4) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... t was that the goods were dutiable as parts of motors under Tariff Item 30D of the erstwhile tariff. Duty of Rs. 42,92,497/- was paid by the assessees under protest. The benefit of exemption under Notification No. 73/68-CE was also denied to the goods. Denial of the exemption benefit was challenged by the assessees by filing Writ Petition No. 10072/1981 before the Hon ble Madras High Court which stayed the operation of the denial, vide its order dt. 20-10-81. On 12-7-82, writ petition was dismissed by the court. In the light of court s direction, appellants filed classification list dt 26-7-82 before the Asst. Commissioner of Central Excise, Coimbatore seeking classification under TI 68 and seeking exemption under Notification No. 118/75 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of interest for the delay in sanctioning the refund. As regards the claim for the period 1-11-83 to 28-2-86, the adjudicating authority held that appellants had not discharged the onus cast upon them under Section 12B of the Central Excise Act, 1944 in respect of the bar of unjust enrichment, which burden was required to be discharged as the assessments during the above mentioned period could not be considered to be provisional in the absence of a formal order under the provisions of Rule 9B of the Central Excise Rules for provisional assessment. The lower appellate authority upheld the rejection on the same ground; hence this appeal. 2. We have heard both sides and perused the records. The RT-12 returns filed by the appellants dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein below :- 29th May, 1984 The Superintendent of Central Excise, Range I C Coimbatore Division, Coimbatore-641018. Sir, Sub : Central Excise - Payment of Duty under protest - Execution of B-13 Bond - regarding. Ref : Your O.C. No. 718/84 dt. 19-5-1984. With reference to the above, it is submitted that there is a dispute in the Classification of Stators and Rotors used as Component Parts of Monobloc Pumpset-vide WMP No. 1 1305/82 in W.P. No. 7505/82 dt. 20-9-82 at the High Court of Madras. Final Decision regarding the Classification is still pending in the Court. However, the payments of duty are made without prejudice to our contention raised, regarding the classification of the Stator and Rotors of Monobloc Pumpsets in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C.)] have also been followed in coming to the conclusion that the assessments were provisional. The ratio of the above decisions are squarely applicable to the facts of the present case and following the same, we hold that the assessment during the period in dispute is required to be treated as provisional. Consequently, the appellants are not required to discharge the burden of showing that they had not passed on the incidence of duty, and the rejection of the refund claim on the ground that the assessees had not crossed the bar of unjust enrichment cannot be sustained. We, accordingly, hold that the assessees are entided to refund of the amount claimed by them, set aside the impugned order and allow the appeal. (Operative part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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