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TMI Blog2013 (9) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... EDABAD), the doctrine of unjust enrichment will, therefore, not be attracted to the refunds pertaining to the finalization of provisional assessments for period prior to 25/06/1999 when the linking proviso under Rules 9B(5) of Central Excise Rules 2004 was not existing. The linking provision under proviso to Rule 9B( 5) was made by an amendment with effect from 25.06.1999 and will be applicable only w.e.f . 25.06.1999 -Following decision of Commissioner of Customs vs. Hindalco Industries Ltd. [2008 (9) TMI 372 - HIGH COURT OF GUJARAT AT AHMEDABAD] - Decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the Central Excise Rules, 1944 on 25/06/1999 is only a clarificatory amendment and will be applicable to the refund claims arisen out of finalization of provisional assessment after 25/02/1999 even for the period prior to 25/06/1999. He relied upon the following judgments: (i) CCE, Mumbai-III vs. Standard Drum & Barrel Mfg. Co. [2006 (199) ELT 590 ( Bom .)] (ii) Sahkari Khand Udyog Mandfai Ltd. Vs. CCE & Cus . [2005 (181) ELT 328 (SC)] (iii) Excel Rubber Ltd. vs. CCE, Hyderabad. [2011 (268) ELT 419 (Tri.-LB)] 5. We have carefully heard the rival submissions and perused the records. The concept of 'unjust enrichment' was made applicable to the Central Excise refunds under Section 11B of the Central Excise Act, 1944 by the Central Excise & Customs (Amendment) Act, 1991 (40 of 1991). A proviso was added to Rule 9B of the Central Excise Rules, 1944 with effect from 25/06/1999 under Notification No.45/1999-CE (NT) dated 25/06/1999. Rule- 9B( 5) dealing with finalization of provisional assessment and after its amendment exists in the following form: "(5) When the duty leviable on the goods is assessed finally in accordance with the provisions of these rules, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 27 of the Act has now been incorporated as a part of Section 18 of the Act. On a plain reading the distinction between Section 18 as it stood prior to amendment i.e. upto 12-7-2006 and subsequent to the amendment i.e. with effect from 13-7-2006 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 sub-sections (3), (4) and (5) to Section 18 of the Act, have been inserted to provide for a mechanism to regularise the payments of duty short levied and interest thereon and du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isional assessment Revenue is bound 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 12-7-2006 and not thereafter." It is relevant to mention that in this judgment, Gujarat High Court has considered both the judgments of Supreme Court in the case of Sahkari Khand Udyog Mandal Ltd. vs. CCE (supra) and Mumbai High Court in the case of CCE, Mumbai-II vs. Standard Drum & Barrel Manufacturing Co. (Supra), relied upon by the learned A.R. were considered. On the other hand, the judgment of Gujarat High Court in the case of Commissioner of Customs vs. Hindalco Industries Ltd. [2008 (231) ELT 36 brought to the notice of CESTAT larger bench in the case of Excel Rubber Ltd. vs. CCE, Hyderabad [2011 (268) ELT 419 (Tri.-LB)] . 8. After analyzing the law laid down by Supreme Court in the case of C CE, Mumbai-II vs. Allied Photographic Ltd. [2004 (166) ELT 3 (SC)], Hon'ble High Court in para -18 of the order in the case of Commissioner of Customs vs. HINDALCO Industries Ltd. (supra) has held that there is distinction between making of a refund and claiming of a refund and that the amendment carried out in Sec. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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