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TMI Blog2012 (11) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... sation of provisional assessment - import was for captive consumption and appellant has not been unjustly enriched – in favor of assessee - 496 of 2008 - C/A/140/12-CUS - Dated:- 8-5-2011 - D.N. Panda and Mathew John, JJ. Charanya Laxmikumaran, Adv. for the Appellant Amrish Jain, AR for the Respondent D.N. Panda, Judicial Member 1. Learned Counsel submits that consequent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such consequence flows unless otherwise required by statutete specifically, refund need not meet the test of unjust enrichment according to law in force at the relevant point of time. In absence of specific denial provision, there is no scope to deny refund flowing from final assessment against provisional assessment. According to learned counsel, similar dispute was dealt by Kolkata Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply and any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or 11B, as the case may be. In Para 12 of the judgment in Allied Photographies case (supra) it was held that Section 11B and Rule 9B operate in different spheres and, consequently, in Para 104 of the judgment in Mafatlal case (supra) it was held that in cases where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to refund the duty without requiring the assessee to make a separate refund application. The Hon'ble Court in Para 14 of Allied Photographies case (supra) further held that judgment in Mafatlal's case stated the proposition of law that if refund arises upon finalisation of provisional assessment, Section 11B will not apply. It was therefore held in Para 14 that refund arising consequent upon f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the amended Rule 9B(5) "The Hon'ble Supreme Court held that merely because the departmental authorities took a long time to process the application for refund, the right of the assessee therein does not get defeated by subsequent amendment to Rule 9B(5). The principles laid down in Allied Photographics case (supra) was followed by Hon'ble Supreme Court in CC v. Oriental Exports-2006 (200) ELT A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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