2003 (11) TMI 91

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..... e after a final assessment is governed by Section 11B, be referred to a Larger Bench - Decided in favour of Revenue. - 2687 of 2001 - - - Dated:- 13-11-2003 - S.N. Variava and H.K. Sema, JJ. [Order]. - In this appeal, a question has arisen whether a claim for refund can be allowed without taking into consideration the doctrine of unjust enrichment after final assessment. 2.Reliance has been placed upon a 3-Judge Bench decision of this Court in the case of Sinkhai Synthetics Chemicals Pvt. Ltd. v. C.C.E., Aurangabad reported in 2002 (143) E.L.T. 17 wherein from the facts it would appear that a final assessment had taken place. This Court held as follows :- Subsequent to this decision of the"4. Tribunal a Bench of nine learne .....

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..... ed paragraph in Mafatlal Industries Ltd. case [(1997) 5 SCC 536] . However, the entire paragraph in Mafatlal Industries case reads as under :- "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 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 in excess of the duty finally assessed, the assessee shal .....

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..... been noticed. 6.To us it appears that the aforementioned two decisions of 3-Judge Benches are against the law as laid down by the 9-Judge Bench in Mafatlal Industries Limited. As the judgments are of 3-Judge Benches and the question of law is an important question, we consider it necessary that the question whether a claim for refund made after a final assessment is governed by Section 11B, be referred to a Larger Bench. The papers may be placed before the learned Chief Justice for constituting a Larger Bench. 7.It must be mentioned that it was submitted on behalf of the respondents that even in this case there were only provisional assessments. This submission has been disputed by learned counsel for the appellants. However, at presen .....

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