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TMI Blog2013 (8) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... reinafter referred to as "the Tariff Act"), whereas the revenue claimed classification of these goods under SH No.4819.12 of the Tariff Act. There was a dispute with regard to price list of the goods as well. According to the revenue, the rate of duty was 20% adv. & the company paid it under the protest and filed a classification list No.1/93-94 with effect from 01.07.1993 and intimated the respondent of such protest. 3. This dispute was adjudicated where the 3rd respondent passed the order-in-original No. CL/144/985 on dated 11.01.1996, classifying the goods under SH No.4819.12, attracting duty at the rate of 20% adv., the value and price of these goods for the purpose of assessment of duties was also finalized and for the period between July, 1993 to March, 1994, the duty was paid under protest. 4. The classification of goods made by the OIO was challenged before the Commissioner (Appeals), Vadodara and it rejected such appeal on the line of order-inoriginal on 30.10.1998. 5. The petitioner-company filed further appeal before the Appellate Tribunal. The Tribunal held that cigarette shells were excisable goods more appropriately classifiable under SH No.4823.90 of the Tariff Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner's favour; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents to refund amount of Rs.74.39 Lacs on the terms and conditions that may be deemed fit by this Hon'ble Court; (D) An ex-parte interim relief in terms of Para 9 (C) above may kindly be granted; (E) That Your Lordships may be pleased to pass appropriate Orders thereby dispensing with filing of certified copy of the Final Order No. A-270/03- NB-C dated 29.05.2003 (Annexure-"D") passed by the Appellate Tribunal, New Delhi; (F) Any other further relief as may be deemed fit in the facts and circumstances of the case may also pleased be granted." 8. On issuance of notice, the respondents have filed their affidavit-in-reply. It is contended by the respondents that in view of the CEGAT' decision dated 31.08.1995, the classification of the goods was made under heading/sub heading 4818.90 upto 29.02.1988 and from 01.03.1988 onward under heading/sub heading 4823.90. It is further contended that a refund claim of Rs.43.81 lacs on 30.09.1996 for duty difference between sub-heading 4819.12 and 4823.90 for the period from 01.07.1993 to 31.03.1994 was pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed fails short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be." Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained is allowed/decreed-then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the same may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) reagitating the issues already decided under Rule 9Bassuming that such a refund claim lies-and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation." What is depended upon heavily by the adjudicating authorities & the Tribunal are following observations from this decision: "The doctrine of unjust enrichment is a just and saluta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court by their order dated 27-04-2006 dismissed the Civil Appeal No.4231/2001 [2006 (200) E.L.T. AI38 (S.C.) after referring to the judgment of the Supreme Court in Mafatlal Industries Ltd. (supra), TVS Suzuki Ltd. and Allied Photographic India Ltd. (supra) and held as under: "These appeals have been filed by the Revenue. The Tribunal, in the impugned order, following its earlier decision, in Messrs Needle Industries Ltd v. CCE (1998 (101) E.L.T. 286(T) has taken the view that the doctrine of unjust enrichment is not applicable to provisional assessment in terms of Section 18 of the Customs Act which is similar to Rule 9B of the Central Excise Rules. A two-Judge Bench of this Court in Commissioner of Central Excise, Mumbai vs. Allied Photographies India Ltd. [2004 (163) E.L.T. 401 (S.C.) =2004 (4) SCC 55] noticing the inconsistency, doubted the correctness of two decisions rendered by three-judge Bench of this Court in , i.e. (i) Sinkhai Synthetics & Chemicals (P) Ltd. v. Commissioner of Central Excise [2002 (9) SCC 416 =2002 (143) E.L.T. 17] and (ii) Commissioner of Central Excise v. TVS Suzuki Ltd. [2003 (7) SCC 24 =2003 (156) E.L.T161] as contrasted to the Constitution Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication in cases where admittedly after final assessment, refund is due to the Assessee. This is explained with the following illustration. Duty paid provisionally Rs.100 Duty finally assessed Rs.60 Duty to be refunded Rs.40 In this case Explanation II will have no application since no claim for refund is made and Rs.40 is to be refunded since the same is admittedly due. Duty paid provisionally Rs.100 Duty finally assessed Rs.70 According to Assessee correct duty payable Rs.60 In this case, admitted amount of refund of Rs.30 would be returned and if the Assessee seeks to claim Rs.10 also (Rs.70-Rs.60) as refund, then Explanation II would apply and the said claim is to be preferred within six months from the date of adjustment of duty. This position is precisely dealt with and explained in the second portion of paragraph No.104 of Judgment in case of Mafatlal Industries (supra)." 20. The two situations are relevant and important. In the first assessment the assessee has paid provisional duty which gets reduced on final assessment. The assessee, therefore, becomes entitled to refund which is payable in terms of Rule 9B of the Excise Act [(sic) Rules], 1944 or Section 18 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Section 18 of the Act. On a plain reading the distinction between section 18 as it stood prior to amendment, i.e. upto 12th July, 2006 and subsequent to the amendment i.e. with effect from 13th July, 2006 becomes apparent. The difference is stark and revealing and it is not possible to agree with the contention of Revenue that such amendment has to be understood as clarificatory in nature. This is more so, when one reads the amendments made in 1998 and the amendment made in Rule 9B of the Central Excise Rules in 1999 considering the pronouncement of the Apex Court as to the distinction between making of a refund and claiming of a refund; the amendment cannot be considered to be retrospective in nature; and cannot be made applicable to pending proceedings. 19. This can be considered from a slightly different angle. While introducing the Taxation Laws (Amendment) Bill, 2005 (Bill No.74 of 2005) the Notes on Clauses in relation to Section 18 of the Act indicate that Subsections (3) (4) and (5) to Section 18 of the Act, have been inserted to provide for a mechanism to regularise the payment of duty short levied and interest thereon and duties that are to be refunded on finalizat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law to make the refund without any claim being required to be made by an Assessee. This would be the position in law upto 12th July, 2006 and not thereafter. 12. In the decision of the Apex Court in the case of Commissioner of Central Excise, Chennai Vs. T.V.S. Suzuki Ltd. reported in 2003 (156) E.L.T. 161 (S.C.), it is held that "provisions of Sub-rule (5) of Rule 9B of erstwhile Central Excise Act, 1944 are not retrospective in operation and merely because the departmental authorities took a long time to process the application for refund, the right of the appellant does not get defeated by subsequent amendment made in Rule 9B(5)." 13. Heavy reliance is placed on the judgment of the Apex Court rendered in the case of Sinkhai Synthetics & Chemicals Pvt. Ltd. Vs. CCE, Aurangabad reported in 2002 (143) ELT 17(S.C.), which, of course, held is per curiam as mentioned hereinabove in the subsequent judgment of the Apex Court of Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd reported in 2004 (166) ELT P.3(S.C.), wherein approval is given to the decision of TVS Suzuki (Supra). 14. Reiteratively, reference is also made of the decision of the Tribunal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As can be noted from the record that, in the instant case, the petitioner-company has paid higher rate of duty on goods under protest for the period from July, 1993 to March, 1994 undisputedly provisionally. The assessment came to be finalized by the Tribunal on 29.12.1996 in the proceedings where classification dispute was put at rest. Admittedly, no duty was paid for which the refund claim has been preferred by the petitioner after the final assessment was ordered under Rule 9B(5) of the Rules and the entire refund claim was for the period during which the assessment was admittedly provisional. Therefore, any excess duty paid at the time of provisional assessment needed to be refunded without even any claim being required to be made by petitioner-assessee, on finalization of assessment. 18.1 The Tribunal in its order insisted that if a claim for refund of duty is to be accepted, it is required to be established by the petitioner that it has not passed the burden of duty to others. Reiteratively, it is emphasized that duty has been collected from ITC to whom the goods had been supplied and therefore, there was no sustainable claim for refund of duty. The Tribunal also refused ..... X X X X Extracts X X X X X X X X Extracts X X X X
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