Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2018 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (5) TMI 605 - HC - Central ExciseUnjust enrichment - provisional assessment - Validity of SCN - Whether tribunal is correct in holding that bar of unjust enrichment is not legally applicable to the provisional assessment cases before amendment to Rule 9B? Held 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 25.06.1999, is noted, only the procedure established under subsection 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 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 Rule, 1944 will not operate retrospectively. In the present case the period in question is 1998-99 and the assessment was finalized on 04/06/2001. Applying the aforesaid principle, the principle of unjust enrichment could not be made applicable. Appeal dismissed - decided against Revenue.
|