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TMI Blog2015 (9) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... 13.08.1998 on the respondents plea that final prices are available within a period of 3 to 4 months and the respondent had given an undertaking in this regard. In this regard the Assistant Commissioner in his order dated 13.08.1998 finalizing the provisional assessment for the period from April 1997 to March, 1998 had observed as under:- "It is seen that M/s.Presvels Pvt. Ltd. are enagaged in the manufacture of LPG cylinders; entire supply of which is made to Government owned oil companies. Final prices are available within a period of 3 to 4 months. The party has also given an undertaking, therefore Government interest remains safeguarded even without recourse to provisional assessment under Rule 9 B. Assessee requested to withdraw provisional assessment order is hereby accepted. Assessee is directed to submit final prices within a period of 3 to 4 months and ensure timely payment of differential duty. In view of the above assessment made provisional vide order No. v (73) 17-5/93/CX- 2 883 dated 08.03.1995 is hereby made final", The Assistant Commissioner as per above order withdrew the provisional assessment order dated 08.03.1995 and treated the assessment for 1997-98 as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by any competent authority under Rule 9 B of the Rules in that regard. The principle of unjust enrichment has been discarded by the Commissioner (Appeals) on the ground that the same had no application as the assessments were provisional. But he has lost sight of the amended provisions of rule 9 B and the law laid down by the Apex Court in its latest pronouncement in the case of CCE, Mumbai-II Vs. Allied Photographies India Ltd. reported in 2004 (166) ELT3 (SC) " 1.4 Accordingly, in the denovo proceedings, the Commissioner (Appeals) was required to specifically examine as to whether there is any specific provisional assessment order passed by the competent authority under Rule 9 B of Central Excise Rules, 1944 and also examine the unjust-enrichment question in the light of the Apex Court judgment in the case of CCE, Mumbai-II Vs. Allied Photographics India Ltd. reported in 2004 (166) ELT 3 (SC) 1.5 The matter was decided denovo by the Commissioner (Appeals) vide order in appeal No.816-817/CE/BPL/2004 dated 27.12.2004 and by this order the Commissioner (Appeals) again allowed both the appeals. Against this order of the Commissioner (Appeals) these appeals have been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order holding that the refund claims were not time banned is not correct. On the question of unjust enrichment, Shri Negi cited the judgment of Tribunal in the case of Sangam Processors reported in 1994 (71) ELT 989 which held that the subsequent adjustment by the assessee by issue of credit notes to the customers will not save him from the bar of unjust enrichment, and once the goods have been cleared on payment of duty at higher rate or higher value, the incidence of the excess duty would be deemed to have been passed on to the customers. Shri Negi, therefore, pleaded that the impugned order passed by the Commissioner (Appeals) is not correct. 4. Shri ZU Alvi, Advocate, the ld. Counsel for the respondent defended the impugned order by reiterating the findings of the Commissioner (Appeals). With regard to the question of applicability of limitation, he pointed out to the findings of the Commissioner (Appeals) in para 3 (iii) of the impugned order, wherein the Commissioner (Appeals) has observed that initially on the assessees' request dated 27.05.1995, the Assistant Commissioner had ordered provisional assessment under Rule 9 B on 08.03.1995 on the ground that final p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date as defined in section 11B in this case would be the date of payment of duty. He pleaded that the Assistant Commissioner has wrongly taken the dates of clearance as the relevant date, while it is the date of payment of duty which is to be treated as relevant for the purpose of refund under section 11B. 4.1 Shri Alvi, therefore, pleaded that the refund claim of Rs. 3,93,783/- had been filed well within the limitation period of one year from the relevant date. 5. We have considered the submissions from both the sides and perused the records. 6. Coming first to the refund claim of Rs. 3,93,783/-, this refund claim is in respect of the clearances made during the period from 10.04.01 to 21.05.2001. However, it is not in dispute that the excess duty paid whose refund has sought had been paid on 19.04.2001, 30.04.2001 and 15.05.2001. The Assistant Commissioner has taken the date of clearance as the "relevant date" under section 11 B for counting the limitation period of one year and on this basis has held that the refund claim filed on 16.04.2002 is barred by limitation. However, in terms of definition of the term 'relevant date' in section 11 B, in the present case the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is regard, the appellants' plea is that in the year 1995 on the appellants' request dated 27.02.1995 for provisional assessment the Jurisdictional Assistant Commissioner has passed an order dated 08.03.1995 ordering provisional assessment. However, subsequently on 31.7.1998 the Assistant Commissioner accepting the assessee's request for withdrawal of the provisional assessment order ordered finalization of the assessment for 1997-98 on the undertaking given by the assessee that final prices are available within 3-4 months and that they would pay the differential duty as soon as the final prices are available. According to the Commissioner (Appeals), in a situation where on account of delay on the part of the HPCL, the prices were not finalized within 3 to 4 months, the assessment should be treated as provisional, even though there is no formal provisional assessment order and for refund of the excess duty paid during such period the bar of unjust enrichment would not apply. We do not agree with this order of the Commissioner (Appeals), as the Apex Court in the case of Metal Forgings vs. Union of India reported in 2002 (146) ELT 241 (SC) in para 11 and 12 of the judgment ..... 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