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TMI Blog2018 (2) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... eceivable, then it is not possible that the same amount could have been recovered by any other means. Therefore, the treatment of this amount shown as receivable is evidence that the incidence of refund amount has not been passed on. We direct the adjudicating authority before re-processing the refund as to make sure that the amount shown as receivable from Customs under the head of Loan and Advance covered the amount of present refund. If it is found correct then the appellant is prima facie entitled for the refund and such amount will not be hit by unjust enrichment - appeal allowed by way of remand. - Appeal No. C/885/09 - A/85238/2001 - Dated:- 30-1-2018 - Shri Ramesh Nair, Member ( Judicial ) And Shri Raju, Member ( Technical ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Industries Ltd. Vs. Union of India 1997 (89) ELT 247 (SC), wherein the Hon'ble Supreme Court in para 95 has held as under: - 95. Rule 9B provides for provisional assessment in situations 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 goods which are finally assessed. Sub-rule (5) provides that when the duty leviable on the goods is asssessed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a case where duty of excise paid provisionally in the Act or the Rules made there under, shall be the date of adjustment of duty after the final assessment thereof. Rule 9B during the relevant time also provided that the duty provisionally assessed shall be adjusted against the duty finally assessed and if the duty provisionally assessed fell short of, or in excess of duty finally assessed, the assessee shall be required to pay or be entitled to refund as the case may be. When Section 11B was amended in 1991 and provision relating to unjust enrichment was introduced, the clause relating to provisional assessment as regards relevant date in Section 11B was omitted. It was re-introduced in 1-8-1998 in Section 11B and the Proviso providing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindustan Zinc Ltd. (supra) also held that if the provisional assessment is made before the amendment of Section 18 by which the unjust enrichment provision was brought w.e.f. 13.7.2006, the unjust enrichment in respect of provisional assessment made prior to such amendment will not be applicable. In view of this legal proposition, considering the facts of the case as the provisional assessment was made in 2004, the unjust enrichment provision is not applicable. Moreover, on perusal of the records, we find that the appellants have shown this refund amount as receivable under the head of Loan and Advance as receivable from Customs. The adjudicating authority in the original order though admitted that the amount of refund was shown as receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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