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TMI Blog2023 (9) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Court that a judgment subsequent to the ruling in Allied i.e. SAHAKARI KHAND UDYOG MANDAL LTD. VERSUS COMMISSIONER OF C. EX. CUS. [ 2005 (3) TMI 116 - SUPREME COURT] appears to have expressed a different view in that the Court held that to maintain a claim for refund, the assessee has to establish that he or it had paid the amount for which relief is sought and had not passed on the burden to the consumers. This judgment though rendered by a three Judge Bench, overlooked the ruling in Allied - Furthermore, even though the judgment has generally referred to the nine Judge Bench ruling in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 1996 (12) TMI 50 - SUPREME COURT] nevertheless the specific observations in Para 104 appears t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as well as in the context of Section 18 of the Customs Act, in Commissioner of Customs, New Delhi v. M/s. Oriental Exports, New Delhi [2006 (200) E.L.T. A138 (S.C.)]. The Court held that even though Rule 9B of the Customs Rules (applicable in that case) was not retrospective, nevertheless pending applications were entitled to the relief prescribed by it. This Court had occasion again to consider the issue in the light of the conflict of decision by a three Judge Bench, in a three Judge Bench decision in Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd. [(2004) 4 SCC 34 = 2004 (166) E.L.T. 3 (S.C.)]. The Court held that the doctrine of unjust enrichment was not applicable to provisional assessment even after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisional assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be . Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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