TMI Blog2009 (3) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants would be Ayurvedic medicaments or not. Apart from the above dispute, the respondents were selling the goods at a composite price and the exact quantum of the permissible abatement from the said price to arrive at the assessable value was also not known at the time of removal. Due to this, the respondent claimed assessments of the goods provisionally. The issue relates to the period from February, 1985 to 26-4-1995. During the pendency of the proceedings on provisional assessments, an order on the classification of the impugned goods was passed by the Original Authority holding that the goods manufactured by the respondents are not Ayurvedic medicaments and are accordingly liable for payment of duty. The said assessment was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A right to recovery under the doctrine of Unjust enrichment arises where retention of a benefit is considered contrary to justice or against equity and the Hon ble Supreme Court after giving elaborate findings held that doctrine of unjust enrichment is based on the equity and has been accepted and applied in several cases. The Apex Court concluded that irrespective of applicability of Section 11B of Central Excise Act, 1944, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. It is further observed, by the Apex Court that for claiming relief of refund, applicant has to show that he has paid the amount for which relief is sought, he has not passed on the burden on the consumers and if such relief no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not entitled to refund. 5. The learned Advocate appearing on behalf of the respondent submits that the issue is now clearly covered by various decisions of the Apex Court. It is also his submission that the issue is regarding the refund claim arising out of provisional assessment, finalized by the authorities. The period is prior to 25-6-1999 i.e. the date on which the proviso to sub-rule (5) of Rule 9B, came into force for satisfaction of Doctrine of Unjust Enrichment even for provisional assessment and the refund arising thereon. 6. We have carefully considered the submissions made at length by both sides and perused the records. The issue involved in this case is regarding the refund claim of the amount, which was provisionally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned period and if so (b) to consider the judgments cited by the Appellants in support of their contention that if assessments were provisional, it should be presumed that the duty has not been passed on to the customers. Accordingly, the lower authority has taken up the issue and passed the impugned order. As seen from the order, the lower authority has conceded that the assessments were provisional during the impugned period. He has observed that during the material period the clearances of impugned goods were permitted provisionally in terms of Rule 9B of C.E. Rules, 1944 under Sub-Heading No. 3003.19 on the grounds of dispute over classification of the said goods, as could be seen from the Hyderabad-Ill Division Central Excise Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent - Provisions of sub-rule (5) of Rule 9B of erstwhile Central Excise Rules, 1944 not retrospective in operation - Merely because the departmental authorities took a long time to process the application for refund, the right of the appellant, does not get defeated by the subsequent amendment made in Rule 9B(5) ibid . 6. If the lower authority is of the opinion that the said decisions of the Hon ble Apex court are not applicable to the present case, then he is bound to give a detailed reasoning, which he has failed to do. In my view, as per the decision of the Hon ble Apex court cited supra, if the refund claim is made pursuant to the finalization of provisional assessment orders and prior to 25-6-1999, then the principles of unjust enri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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