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TMI Blog2006 (10) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... ur. 2. The brief facts of the case are as follows :- Consequent to the Hon'ble Andhra Pradesh High Court's order dated 23-9-1982 in Writ Petition No. 4280 of 1982, the Deputy Commissioner of Central Excise, Tirupati Division had finalized the provisional assessment of the Respondent's unit for the period from July 1986 to March 1999. The Restoration Petition filed by the Department in respect of the Appeal No. 10230-31 of 1983 was dismissed by the Supreme Court on 8-3-1999. On finalization of provisional assessment, it was found that the assessee had paid an amount of Rs. 2,12,19,638/- in excess. Therefore, the assessee were asked to file an application for refund under Section 11B of Central Excise Act, 1944, in terms of amended proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than the issue of provisional assessment was settled in principle in the assessee's favour. He had also stated that for the period prior to 25- 6-1999, there is no legal authority for insisting on filing of refund application under Section 118 in respect of the refund arising out of finalization of provisional assessment under Rule 9B(5). With the above observation, the Commissioner (Appeals) allowed the appeal of the Respondents. The Revenue is aggrieved over the decision of the Commissioner (Appeals) on the ground that the law applicable on the date of filing the refund claim should be applied. In the instant case, the provisional assessment were finalized by jurisdictional authority on 19-4-2000 vide its order dated 19-4-2000 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing expenses. The Revenue filed an appeal before the Supreme Court against the above judgment of Andhra Pradesh High Court on the grounds of unjust enrichment. The Supreme Court after hearing both the sides, passed a format order dated 29-4-1987 and issued certain directions for computing duty liability and for making assessment with further directions that the assessment initially made stand set aside and fresh assessment be made in accordance with the format order. Subsequently the Supreme Court dismissed the appeal of the Revenue due to non compliance with directions of the Apex Court to the Revenue. The application for restoration of the dismissed appeal also came to be finally dismissed on 8-3-1999 after hearing the Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner upon his furnishing Bank guarantee;" Andhra Pradesh High Court order has become final as can be seen from the subsequent events culminating the dismissal of the restoration application of the Revenue by the Supreme Court. It should also be kept in mind that during the relevant period, the doctrine of unjust enrichment was not made applicable to the finalization of provisional assessment. In the case of Hyderabad Industries Ltd v. CCE [1998 (97) E.L.T. 434 (Tri.)], it is held that refund due to the assessee pursuant to the orders of High Court and the Supreme Court must be granted especially when those orders have been passed by the Court/s long before the provisions of Section 11B came to be amended in 1991 to take into conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) and period covered by the provisional assessment being July 1986 to March 1989, long before the amendment of Rule 9B on 26-6-1999. There is no question of invoking the amended Rule 9B to require the assessee to file refund claim and prove that there is no unjust enrichment as a precondition for grant of refund already worked out. It was also pointed that the prior to the amendment of Rule 913, there was no need to file any refund claim and refund has to be done suo motu on finalization of provisional assessment. It was also urged that Rule 173-I as it stood earlier mandatorily requires the refund to be given or the demand to be paid without any further proceedings byway of notice, hearing, order, etc. by any authority. In the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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