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TMI Blog2011 (1) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... l assessment, order of this Court dated 30-10-1991 in the matter of restitution would be subject to the provisions of Section 27(3) of the Customs Act, 1962, refund claim rejected X X X X Extracts X X X X X X X X Extracts X X X X ..... CC, New Delhi [2001 (137) E.L.T. 527 (Tri. -Del.)] (b) Kinetic Motors Co. Ltd. v. CCE, Indore [2001 (136) E.L.T. 85 (Tri. -Del.)] (c) Oriental Exports v. CC, New Delhi [2001 (127) E.L.T. 578 (Tri. -Del.)] (d) Hero Honda Motors Ltd. v. CC, New Delhi [2000 (126) E.L.T. 1014] (e) Escorts Yamaha Motors Ltd. v. CC, New Delhi [2000 (122) E.L.T. 883] (f) Finolex Industries Ltd. v. CC, Pune [2004 (166) E.L.T. 230 (Tri. -Del.)] A Larger Bench of the Apex Court in the case of Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)] affirmed the decision in the case of TVS Suzuki Ltd. and held that in the case of consequential refund arising out of finalization of provisional assessment, principles of unjust enrichment did not apply. The CBEC had directed the field officers to dispose the pending cases in the light of the above judgment in the case of Allied Photographics India Ltd. Yet another ground taken to assail the impugned order is that it was settled by the following decisions that where the unit was suffering loss, it cannot be held that it had passed on the duty to the customers. (a) Superintending Engineers, TNEB v. CCE [2004 (164) E.L.T. 84 (T)] (b) Shakun Overseas Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove dictum laid down by the Apex Court, it is not open to the Petitioners to contend that in respect of the refund arising under Section 18 of the Customs Act, the principles of unjust enrichment contained in Section 27 of the Customs Act are not applicable …….." 5. We also note that the Hon'ble High Court of Bombay had dealt with this specific issue in United Spirits Ltd. case (supra). After considering the facts and pertinent ratio contained in the judgments of the Apex Court in Allied Photographics India Ltd. (supra) and Mafatlal Industries Ltd. (supra), their lordships rendered the following findings :- "20. In Allied Photographics India Ltd. (supra) certain refund claims had been filed on behalf of M/s. AGIL. These claims were rejected. Claims were made in 1986. Writ Petition came to be filed in the High Court. The learned Single Judge held that the action of the Department collecting the duty not on the sale price of NIIL to M/s. AGIL was illegal and, therefore, NIIL was entitled to refund. As the question of 'unjust enrichment' was debatable, the question was referred to the Full Bench. After the decision of the Full Bench, the petition was reposte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having regard to the fact that NIIL (manufacturer) had paid the differential disputed excise duty under protest from 1-3-1974 to 31-10-1984 when the assessment was finalised in favour of NIIL in view of the judgment of this Court in the case of Union of India and Others v. Bombay Tyre International Limited, reported in 1983 (14) E.L.T. 1896 (S.C.) = AIR 1984 S.C. 420?" To answer the issue, two points were framed for determination. Firstly, whether refund of duty paid under provisional assessment is similar to duty under protest as both are "on account" payments adjustable on vacation of protest. Secondly, if in the course of such adjustment or vacation of protest if any amount is payable by the Revenue to the manufacturer, is it open to the purchaser to contend that he has stepped into the shoes of the manufacturer seeking refund of "on account payments" and therefore, he was not bound to comply with Section 11(B) of the said Act. The Court noted that there is nothing in Para 95 of Mafatlal (supra) to suggest that payment of duty under protest does not attract the bar of unjust enrichment. Paragraph No. 104 only states that if refund arises upon finalisation of provisional asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Counsel appearing on behalf of the Department. That judgment is, therefore, per incuriam. Learned Counsel for the respondent herein placed reliance on the judgment of this Court in the case of TVS Suzuki Ltd. (supra). In that case, application for refund was filed. This was on completion of final assessment. On 9-7-1996, the Department issued a show cause notice as to why the refund claim should not be rejected for non-compliance of Section 11B. By order dated 17-7-1996, the refund claim was rejected on the ground that it was beyond limitation. On appeal, the Commissioner (Appeals) observed that the bar of unjust enrichment was not applicable as the assessee claimed refund consequent upon final assessment. He allowed the refund claim. CEGAT agreed with the view of Commissioner (Appeals). Before this Court, the Department conceded rightly that in view of para 104 of the judgment of this Court in Mafatlal Industries Ltd. (supra), bar of unjust enrichment was not applicable in cases of refund consequent upon adjustment under Rule 9B(5). The judgment of this Court in the case of TVS Suzuki Ltd. (supra), therefore, supports the view which we have taken herein above that refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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