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TMI Blog2024 (10) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment under Rule 9B of the Central Excise Rules, 1944 is independent from the provisions of refund under Section 11B of the Central Excise Act, 1944 - The procedure regarding unjust enrichment of finalization of provisional assessment will be applicable to the provisional assessment made after 1999 and not before that date as the proviso to Rule 9B in the form of sub-rule (5) did not have a retrospective effect. The doctrine of unjust enrichment therefore would not be attracted to the refunds pertaining to the finalization of the provisional assessment for the period prior to 1999 and sub-rule (5) to Rule 9B of the Central Excise Rules, 1944 will not operate retrospectively. When delay in deciding the Assessment Order is not attributable to the assessee, the time consumed in passing the Assessment Order will not defeat the claim for refund on the ground of unjust enrichment flowing from proviso to sub rule (5) of Rule 9B of the Rules 1944. The impugned order of Tribunal is in consonance with law and no case is made out for interference. In view of settled legal position, no substantial question subsists and therefore, the appeal is dismissed. - HON BLESRI JUSTICE SUJOY PAUL AN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment by allowing deduction of (i) Secondary Freight and (ii) Interest on Sundry Debtors. In furtherance of the order of CEGAT, the Order-In-Original (de-novo) was finally passed on 31.03.2004 allowing deduction of (i) Secondary Freight and (ii) Granting interest on Sundry Debtors from 01.01.1996 to 31.03.1998. The assessee unsuccessfully challenged in Appeal No.7 of 2005 (H-IV) CE, which was decided on 28.01.2005. This appellate order became subject matter of challenge before the CESTAT, which passed the impugned order on 01.05.2007. This order of CESTAT is subject matter of challenge before this Court. 5. Sri A. Rama Krishna Reddy, learned Standing Counsel for the appellant fairly submits that the first issue was regarding admissibility of interest on Sundry Debtors as a deduction in finalization of Provisional assessments under Rule 9B of the Central Excise Rules, 1944 (for short, the Rules, 1944 ) for the period prior to 1996. The Department accepted the order of CESTAT on this issue. Learned counsel further submits that the appellant is aggrieved by the order impugned, because the Tribunal was impressed and came to hold that since the period involved in this appeal is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the record. 11. As noticed above, in the instant case, it is not in dispute between the parties that the relevant period is between 01.04.1989 to 31.03.1998. The Provisional Assessment Order was passed on 12.03.1999. The said order became subject matter of challenge in appeal and then before the CESTAT. Upon remand by CESTAT by its order, dated 04.11.1999, the Order-In-Original (Assessment Order) could be passed only on 31.03.2004. In this backdrop, it is to be seen whether proviso to Rule 9B (5) of the Rules, 1944 can be pressed into service and refund can be declined by applying the concept of unjust enrichment . 12. In our opinion, the point involved is no more res integra. On this question the Division Bench of Bombay High Court has drawn curtains in the case of CEAT Limited (supra). The Division Bench after taking into account the Judgment of the Supreme Court in the case of Mafatlal (supra) and Commissioner of C.EX .Banglore-II v. ITC Limited 2011 (268) E.L.T 308 (Kar) opined as under: 5. From the aforesaid material on record, it is clear that the Appellate Authority, the Tribunal and the department proceeds on the assumption that this is a case of claim for refund by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The refund is paid in pursuance of the finalization of the provisional assessment order and in fact, the Assessing Authority was right in holding that the doctrine of unjust enrichment does not apply in the facts of the case relying on the judgment of the Constitution Bench as well as subsequent decisions. 16. In view of the settled position of law, it is clear that the entitlement to refund and finalization of the provisional assessment under Rule 9B of the Central Excise Rules, 1944 is independent from the provisions of refund under Section 11B of the Central Excise Act, 1944. Even if the amendment made by the notification 45/99 with effect from 25-6-1999, is noted, only the procedure established under sub-section (2) of Section 11B of the Central Excise Act has been made applicable to the refund arising out of the finalization of the provisional assessment under Rule 9B of the Central Excise Rules, 1944. The procedure regarding unjust enrichment of finalization of provisional assessment will be applicable to the provisional assessment made after 1999 and not before that date as the proviso to Rule 9B in the form of sub-rule (5) did not have a retrospective effect. The doctrine o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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