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TMI Blog2013 (11) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1962 applicable to the provisional assessment also. 2. Shri Anand Nainawati, (Adv.) and Shri Manish Jain (Adv.) appearing on behalf of the appellant argued that the issue of non-applicability of unjust enrichment to refund claims arising out of finalization of provisional assessment for the period prior to 13.07.2006, has been decided favourably by several judgments as follows:- i) Essar Steel Ltd. Vs. CC Jamnagar 2012 (26) STR 502 (T) ii) CC Kandla Vs. Hindustan Zinc Ltd. 2009 (235) ELT 629 (Tri-LB) iii) CC Chennai Vs. Scientific Instruments Co. Ltd. 2012 (286) ELT 261 (T) iv) CC Kandla Vs. Hindustan Zinc Ltd. 2008 (228) ELT 125 (T) v) CC Vs. Hindalco Industries Ltd. 2010 (262) ELT 106 (Guj.) vi) CC Vs. Indian Oil Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerally deals with claim for refund of duty cannot be of any assistance to the revenue. Similarly the definition of the term assessment under Section 2(2) of the Act also cannot help the revenue in light of the specific provisions of Section 18 of the Act which override all other provisions of the Act. The contention that the Court should not permit a person to derive unjust benefit also does not merit acceptance. The Court can only read the provisions and the statute as they stand, and if necessary, interpret the same but the Court cannot legislate. This is a salutary principle of interpretation. Furthermore, as noticed hereinbefore, the Apex Court has in no uncertain terms drawn the distinction between making of refund and claiming of ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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