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TMI Blog2010 (9) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of compounded levy scheme in terms of Notifications No. 43/98-C.E. (N.T.) dated 10-12-1998, further amended under Notification No. 11/2000-C.E. (N.T.) dated 1-3-2000, the Deputy Commissioner of Central Excise by his provisional order dated 4-1-2001 determined the duty liability of the appellants @ ₹ 1,93,500/- p.m. for the period from April, 1999 to February, 2000 and @ ₹ 2,04,000/- for the month of March, 2000. The appellants accordingly paid the duty till the finalization of the assessment. The Commissioner by his order dated 3-12-2003, made the final assessment and determined the duty finally as ₹ 1,50,000/- for the month from April, 1999 to February, 2000 and sum of ₹ 2,00,000/- for the month of March, 2000. 6. Subsequent to finalisation of the assessment and final determination of duty liability, the appellants filed a refund claim for ₹ 2,51,714/- on 19-1-2004. Consequently, a show cause notice dated 31-5-2004 came to be issued proposing to deny the refund of excess duty which was paid by the appellants during the period from the date of provisional assessment till the final assessment. The notice was contested by the appellants on thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Rules. Learned Advocate further submitted that both the provisions operate in two different spheres and it is settled law that in case the assessee is found to have paid any amount in excess of the duty liability as determined at the final assessment, the same becomes immediately repayable to the assessee and in such cases the principle of unjust enrichment enshrined under Section 11B is not attracted. He further submitted that the invoices issued during the relevant period clearly disclose that the duty element was not passed on to the ultimate consumers. 9. On the other hand, learned DR referring to the decision of the Apex Court in the matter of Commissioner of C. Ex., Mumbai-II v. Allied Photographics India Ltd. reported in 2004 (166) E.L.T. 3 (S.C.), submitted that the Apex Court has clearly distinguished between the amount refundable at the time of finalization of assessment and the amount claimed by way of refund thereafter by the assessee. In the case in hand, the same falls in the second category and, therefore, the provisions of Section 11B are clearly attracted. 10. The undisputed facts on record are that the provisional assessment pursuant to the declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court relates to a situation where factually the duty element in terms of the provisional assessment already stands transferred to the buyer. It is true that in terms of Rule 9B read with the said decision of the Apex Court, there is no obligation cast upon the authority to consider the applicability of the principle of unjust enrichment at the time of finalization of assessment. At the time of finalization of assessment, if the authority finds the assessee having paid any amount in excess of the amount payable under the final assessment, then certainly the authority is expected to order refund of such excess amount. 14. In the case in hand, as already stated above, there is however, admission on the part of the appellants themselves about passing over of incidence of duty element to the buyer. There is a clear statement by the appellants themselves that after opting for the benefit of compounded levy scheme, the amount of excise duty determined under provisional assessment order was included in the processing charges. Obviously, therefore, the same was not disclosed independently in the invoices. Being so, absence of specific indication thereof in the invoices, in the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protest falls under Section 11B whereas duty paid under provisional assessment falls under Rule 9B. That Section 11B deals with claim for refund whereas Rule 9B deals with making of refund, in which case the assessee has not to comply with Section 11B. Therefore, Section 11B and Rule 9B operate in different spheres and, consequently, in Para 104 of the said judgment, it has been held that in cases where duty is paid under Rule 9B and refund arises on adjustment under Rule 9B(5), then such refund will not be governed by Section 11B. In the said para, it has been clarified that if an independent refund claim is made after adjustment on final assessment under Rule 9B(5), agitating the same issues, then such claim would attract Section 11B. This is because when the assessee makes an independent refund claim after final orders under Rule 9B(5), such application represents a claim for refund and, it would not come in the category of making of refund and therefore, the bar of unjust enrichment would apply. Hence, there is no merit in the contention of the respondent M/s. APIL that although in this case duty was paid under protest, there was no difference between such payment and duty paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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