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2005 (12) TMI 109 - HC - Central ExciseRefund claim - excise duty paid on goods cleared on provisional assessment - Whether the CESTAT was justified in holding that the refund claim of the assessee could not be rejected by applying the principle of unjust enrichment, on the ground, that the principle of unjust enrichment is not applicable to the refunds arising on the finalization of the provisional assessment under Rule 9B(5) of the Central Excise Rules, 1944 on June 8, 1999 ? - HELD THAT:- Admittedly the assessee has filed the refund application on November 1, 1999. Since amendment to Rule 9B(5) had come into force with effect from June 25, 1999, the said refund application made on November 1, 1999 had to be disposed of as per the amended Rule 9B(5) by applying the principles of unjust enrichment contained in Section 11B of the Excise Act. The contention that the refund claimed in the application dated November 1, 1999 pertains to the refund accrued to the assessee prior to June 25, 1999 and, therefore, the amended Rule 9B(5) has no application cannot be accepted for the simple reason that in view of the amendment to Section 11B with effect from August 1, 1998, all refunds arising on finalisation of the provisional assessments made under the Excises Rules are governed by the procedure prescribed u/s 11B of the Excise Act and the amendment to Rule 9B(5) on June 25,1999 merely clarifies the legal position existing from August 1, 1998. Thus, refund accrued to the assessee after August 1, 1998 and moreover claim for refund was admittedly made after the amendment to Rule 9B(5) and , therefore, the principles of unjust enrichment is squarely applicable to the facts of the present case. Accordingly, we hold that, the Assessing Officer was justified in invoking the principles of unjust enrichment to the refund arising on finalisation of the provisional assessment on June 8, 1999 and that the refund claimed by the assessee by application dated November 1, 1999 was governed by the provisions of Section 11B of the Excise Act. In the present case, admittedly the assessee has recovered from its customers the duty paid on goods cleared on provisional assessment. Therefore, the Assessing Officer was justified in rejecting the refund claim of the assessee. Moreover, having consistently argued before the authorities below that irrespective of the assessee collecting excise duty from the customers, the revenue cannot deny refund arising on finalisation of the provisional assessment, it is not open to the assessee, at this belated stage in this appeal to make out an altogether different case that the duty collected has been refunded to the customers. Thus, we hold that the assessing officer was justified in holding that the refund arising on finalisation of the provisional assessment on June 8, 1999 was governed by the principles of unjust enrichment contained in Section 11B of the Excise Act as amended by Act 21 of 1998 and the Tribunal erred in holding to the contrary. In the result, the appeal succeeds. The reframed question of law, is answered in the negative i.e. in favour of the Revenue and against the assessee. In the facts and circumstances of the case, there will be no order as to costs.
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