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TMI Blog2010 (8) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty of ₹ 83,37,896.17 was found in respect of certain clearances and also excess payment of duty of ₹ 13,82,22,628.76 was found in respect of other clearances and the latter amount was ordered to be credited to the Consumer Welfare Fund (CWF) on the ground of unjust enrichment. The order was passed under Rule 7 of the Central Excise Rules, 2002 read with Section 11B of the Central Excise Act. Before the original authority, the assessee had sought adjustment of the short-paid duty against the excess payment of duty and for refund of the net amount of duty paid in excess. This plea was rejected on the ground that the incidence of duty had already been passed on to the buyers of the goods. The original authority took the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y paid by the assessee could be refunded to them only in terms of Section 11B(2) of the Act, which would mean that the doctrine of unjust enrichment is applicable to the facts of this case. In this connection, the learned JCDR has heavily relied on the Hon ble High Court s judgment in Commissioner v. Standard Drum Barrel Mfg. Co., 2006 (199) E.L.T. 590 (Bom.) as also on the Tribunal s order in Gujarat State Fertilizers Chemicals Ltd. v. Commissioner, 2005 (188) E.L.T. 92 (Tri.-Mumbai). According to the learned JCDR the substantive issue in the present case is squarely covered by the High Court s decision cited above. 4. Learned counsel for the respondent seeks to distinguish the case of Standard Drum Barrel Mfg. Co. (supra) by poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld wait for the Larger Bench decision. 5. At the outset, we have got to reject the suggestion to wait for the Larger Bench decision inasmuch as we are bound by the remand order of the Hon ble Supreme Court, whereby their Lordships directed time-bound disposal of the case. Though, the time prescribed by the Apex Court ran out long before owing to administrative and other reasons beyond the control of this Bench, we have got to take up the case for final disposal, now that both the sides are before us for the first time since the above remand, with their respective view points. 6. We have given careful consideration to the above view points. In the case of Standard Drum Barrel Mfg. Co. (supra) certain provisional assessments were fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant amendments to Section 11B and Rule 9B, and the Apex Court s decisions in Mafatlal Industries case and the case of Commissioner v. T.V.S. Suzuki Ltd., - 2003 (156) E.L.T. 161 (S.C.), held that the assessing officer was justified in holding that the refund arising out of finalisation of provisional assessment on 8-6-1999 was governed by the principle of unjust enrichment contained in Section 11B of the Central Excise Act as amended. Learned counsel has attempted a distinction of Standard Drum Barrel Mfg. Co. case (supra). According to him, the Hon ble High Court s ruling cannot be applied to the instant case inasmuch as : (a) in that case there was a formal refund claim filed by the assessee, and (b) the period of provisional assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is fact would not detract from the obligation cast on the assessing authority by the proviso (added with effect from 25-6-1999) to sub-rule (5) of Rule 9B of the Central Excise Rules, 1944. This proviso reads thus : Provided that, if an assessee is entitled to a refund, such refund shall not be made to him except in accordance with the procedure established under sub-section (2) of Section 11B of the Act. Obviously, this provision contains a mandate to the assessing authority and accordingly the said authority is liable to decide, before effecting any refund of any excess duty to the assessee, as to whether such refund would be hit by the bar of unjust enrichment created under sub-section (2) of Section 11B. The assessing authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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