TMI Blog2010 (8) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... mers. The facts of the case are that MRPL is a refinery engaged in manufacture and clearance of petroleum products from crude oil. Requirement of crude oil is mostly met by imports. The quantity relevant and value relevant for assessment of consignments of crude oil imported were under dispute for a long time. During the period of dispute the appellant followed provisional assessment. Persuant to the dispute being settled by an order of the Tribunal, assessment of consignments provisionally assessed was finalized. In a number of cases, it was found that the appellant had paid excess duty than due. It claimed refund which was allowed. In respect of certain consignments, the appellant was not able to establish that the excess duty paid had not been fully or partly passed on to its buyers. In separate orders, the original authority sanctioned refund to the tune of Rs.25,42,726/- and credited to the Consumer Welfare Fund. Particulars are as follows:- Sl.No. Order-in-original Refund involved 1 53/2007 dt. 31/12/2007 Rs.17,205/- 2 56/2007 dt. 11/2/2008 Rs.2,37,814/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of provisional assessment, principles of unjust enrichment did not apply. The CBEC had directed the field officers to dispose the pending cases in the light of the above judgment in the case of Allied Photographics India Ltd. Yet another ground taken to assail the impugned order is that it was settled by the following decisions that where the unit was suffering loss, it cannot be held that it had passed on the duty to the customers. a. Superintending Engineers, TNEB Vs. CCE [2004(164) ELT 84 (T)] b. Shakun Overseas Ltd. another Vs. CCE [2001(47) RLT 221] 3. The ld. Counsel appearing for the appellants reiterated the arguments taken in the appeal. He has relied on a decision of the Tribunal in Hindustan Petroleum Corporation Ltd. Vs. CC, Chennai [2009(242) ELT 228 (Tri. Chennai)] wherein the Tribunal had held that bar of unjust enrichment was not attracted in cases of refund arising on finalization of provisional assessment prior to 13/7/2006 when Section 18 of the Act was amended incorporating relevant provision on unjust enrichment. In passing the said order, the Tribunal had followed the judgment of Hon'ble Gujarat High Court in the case of Hindalco Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . These claims were rejected. Claims were made in 1986. Writ Petition came to be filed in the High Court. The learned Single Judge held that the action of the Department collecting the duty not on the sale price of NIIL to M/s. AGIL was illegal and, therefore, NIIL was entitled to refund. As the question of #unjust enrichment# was debatable, the question was referred to the Full Bench. After the decision of the Full Bench, the petition was reposted, and Union of India was directed to prove that the tax burden has in fact been shifted to consumers. Pending further examination, the Department was directed to deposit the amount in Court. When the petition came for hearing, NIIL conceded that it had passed on the burden to M/s. AGIL the sole selling distributors of NIIL. The refund claims of NIIL were rejected. The learned Judge directed M/s. AGIL to file affidavit stating whether it had passed on the burden to its dealers or not? After further inquiry, it was held that the Union of India had failed to prove that M/s. AGIL had passed on the burden to its dealers and accordingly, ordered refund of the amount. In an intra Court appeal, the Division Bench took a view that since NIIL had c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to the purchaser to contend that he has stepped into the shoes of the manufacturer seeking refund of #on account payments# and therefore, he was not bound to comply with Section 11(B) of the said Act. The Court noted that there is nothing in Para 95 of Mafatlal (supra) to suggest that payment of duty under protest does not attract the bar of unjust enrichment. Paragraph No. 104 only states that if refund arises upon finalisation of provisional assessment, Section 11(B) will not apply. Relying on this paragraph, it was argued that payment under protest and payment of duty under provisional assessment are both on account payments under the Act. This submission was rejected. The Court held that there is basic difference between duty paid under protest and duty paid under Rule 9B. The duty paid under protest falls under Section 11B and duty paid under provisional assessment falls under Rule 9B. Section 11B deals with the claim for refund whereas Rule 9B deals with making of refund in which case the assessee has not to comply with Section 11B. Therefore, Section 11B and Rule 9B operate in different areas. Proceeding further the Court in Paragraph No. 14 observed as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the refund claim. CEGAT agreed with the view of Commissioner (Appeals). Before this Court, the Department conceded rightly that in view of para 104 of the judgment of this Court in Mafatlal Industries Ltd. (supra), bar of unjust enrichment was not applicable in cases of refund consequent upon adjustment under Rule 9B(5). The judgment of this Court in the case of TVS Suzuki Ltd. (supra), therefore, supports the view which we have taken herein above that refund consequent upon finalisation of provisional assessment did not attract the bar of unjust enrichment. The Supreme Court, therefore, held that in order to get refund the Respondent was bound to comply with Section 11B of the Act. (Para 104 is as set out in SCC which corresponds to para 95 in E.L.T.). What was therefore being considered was Rule 9B(5) of the Central Excise Rules before the proviso was inserted w.e.f. 15-6-1999. 21.?It would, thus, be clear that what was under the consideration was the provisions of the Central Excise Act, 1944 and Rules framed thereunder as in 1986. This is not an authority for the proposition that in case of provisional assessment under the Customs Act, the doctrine 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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