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TMI Blog2018 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... .1999 and finalization of assessment completed after the said date refund arising out of such finalization of assessment will not hit by unjust enrichment as the provision of unjust enrichment shall not be applicable - the provision of unjust enrichment is not applicable - refund allowed - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... her - 1988 (38) ELT 27 (Bom.) (v) New India Industries Ltd. Vs. Union of India - 1990 (46) E.L.T. 23 (Bom.) (vi) Corn Products Company (India) Ltd. Vs. Union of India - 1991 (55) ELT 460 (Bom.) (vii) Timken India Ltd. Vs. Commissioner of Customs, Kolkata - 2007 (217) ELT 197 (Tri.-Kolkata) (viii) Commissioner of Customs, Kandla Vs. Hindustan Zinc Ltd. - 2009 (235) E.L.T. 629 (Tri.-LB) (ix) Commissioner of Central Excise, Mumbai Vs. CEAT Ltd. - 2016 (331) E.L.T.456 (Tri.-Mumbai) (x) CEAT Ltd. Vs. Commissioner of Central Excise, Mumbai-III (xi) Mafatlal Industries Vs. Union of India - 1997 (89) ELT 247 (xii) Commissioner Vs. T.V.S. Suzuki - 2003 (156) ELT 247 (S.C) (xiii) Commissioner of Central Excise Vs. Allied Photograph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 1997 (89) ELT 247 wherein it was held as under: "Rule 9B provides for the provision assessment in situation specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the foods which are finally assessed. Sub-rule (5) provides that when the duty leviable on the goods is assessed finally in accordance with the provisions of these rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitles to a refund, as the case may be". Any recoveries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 an claiming of a refund; the amendment cannot be considered to be retrospective in nature; and cannot be made applicable to pending proceedings". (V) The issue was further considered by the Larger Bench of the CESTAT in Commissioner Vs. Panasonic Battery India Co. Ltd. - 2014 (303) ELT 231 (Tri.-LB) wherein it was held as under: "Entitlement to refund and finalization of provisional assessment under Rule 9B of the Central Excise Rules, 1944 is independent from the provision of refund under Section 11B of the Central Excise Act, 1944. Even under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional assessment done prior to the amendment of Rule 9B of the said rules has held as under: "6.4?The third question arises is whether refund arising by order dated 10-12-1999 which was a final assessment order under Section 18(2) of the Act as aforesaid shall meet test of unjust enrichment. This issue is no more in res integra in view of ratio laid down by Hon'ble Supreme Court in Allied Photographics Ltd. case (supra) and subsequently followed in Civil Appeal No. 4231 of 2001 in the case of CC v. Oriental Exports - 2006 (200) E.L.T. A138 affirming decision of Tribunal in the case of Oriental Exports v. Commissioner - 2001 (127) E.L.T. 578 holding that Three-Judges Bench in Allied Photographics case - 2004 (166) E.L.T. 3 (S.C.) had also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the subsequent judgment reported as New India Industries Ltd. Vs. Union of India 1990 (46) ELT 23 (Bom,). The said judgement was also followed by Hon'ble Bombay High Court in the case of Corn products Company (India) Ltd. Vs. Union of India 1991 (55) ELT 460 (Bom,). As regard the reliance placed by the Revenue on the decision of CCE Vs. M/s. Christine Holden (2003 (155) ELT 271 CEGAT, CCE vs. M/s. FGP Ltd. 2003 (156) ELT 90 CEGAT and M/s. CEAT Ltd. Vs. CCE 2004 (170) ELT 442, the ratio laid down in the aforesaid cases is based on the fact that Section 11B was squarely applicable. However in the facts of the present case Section 11B is not applicable. Therefore question of proving whether the duty liability has been passed on to the buye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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