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TMI Blog2011 (1) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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/- 3 57/2007 dt. 15-2-2008 Rs. 21,93,663/- 4 59/2007 dt. 26-2-2008 Rs. 48,514/- 5 65/2007 dt. 10-3-2008 Rs. 45,530/- The period of dispute is 1998-99 to 2005-06. 2. The impugned order is challenged on various grounds. It is submitted that the provisions of unjust enrichment would not apply for the period prior to 13-7-2006 in respect refund arising on finalization of provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions 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 v. CCE [2004 (164) E.L.T. 84 (T)] (b) Shakun Overseas Ltd. & Another v. CCE [2001 (47) RLT 221 = 2002 (140) E.L.T. 444 (Tribunal)]. 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. v. CC, Chennai [2009 (242) E.L.T. 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 Industries Ltd. The ld. Counsel also invited our attention to the CBEC Circular F.No. 354/66/2001-TRU dt. 21-6-2001, which had clarified, inter alia, Rule 7 relating to provisional assessment introduced in the Central Excise (No. 2) Rules, 2001 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conceded of having passed on tax burden to M/s. AGIL, the question of further examining as to whether M/s. AGIL has passed on burden to its dealers, would not arise and accordingly, the appeal was allowed. Aggrieved, an SLP wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 :- "14. As stated above, para 104 of the judgment in the case Mafatlal Industries Ltd. (supra) states that if refund arises upon finalisation of provisional assessment, Section 11B will not apply. Para 104 of the said judgment does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 enrichment will not apply considering Sections 27(2), (3) of the Customs Act. The doctrine of unjust enrichment will only apply when the assessment is finally completed. There can be no application for refund before the final assessment is made. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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