TMI Blog2014 (7) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... to him except in accordance with the procedure established under sub-section (2) of Section 11B of the Act. Proviso introduced in sub-rule (5) of Rule 9B cannot be said to be retrospective in operation. - However, revenue, contends that on the date on which the proviso was brought into force, i.e. 25-6-1999, the refund claim was still pending with the departmental authorities and, therefore, it had to be adjudicated in accordance with the law as it became enforceable from 25-6-1999. - this contention cannot be accepted. - 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 sub-rule (5) of Rule 9B. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant submits that they have cleared the goods on the basis of contracts pertaining to 1994 and the clearances were made during the period 1996-1999. He submits that by Notification No.45/99-CE(NT), dated 25.06.1999, a proviso was inserted under sub-rule (5) of Rule 9B of the erstwhile Central Excise Rules, that the assessee is entitled to refund in accordance with Section 11B(2) of the Central Excise Act. It is contended that prior to 25.06.1999 principles of unjust enrichment is not applicable in respect of the clearance of the goods under provisional assessment under Rule 9B of the said Rules. He relied upon the decision of the Hon ble Supreme Court in the case of Commissioner of Central Excise, Chennai Vs T.V.S. Suzuki Ltd. r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us other cases. He further submits that the Larger Bench of the Tribunal in case of Excel Rubber Ltd. Vs Commissioner of Central Excise, Hyderabad reported in 2011 (268) E.L.T.419 (Tri.-LB) held that Doctrine of Unjust Enrichment is applicable on finalization of provisional assessment under Rule 7(6) of the Central Excise Rules, 2001. 4. After hearing both sides and on perusal of the records, I find that the adjudicating authority observed that the transaction in the present case is fairly old one pertaining to the year 1995 and adopted the procedure for finalization in force since 2000. It is seen from the adjudication order that provisional assessment was finalized under Rule 9B of the Central Excise Rules, 1944/ Rule 7(3) of the erstw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee shall pay the deficiency or be entitled to a refund, as the case may be . Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. 3.In order to get over the situation arising under Mafatlal Industries Ltd., (supra) vide notification No. 45/99-C.E. (N.T.), dated 25-6-1999, an amendment was made in sub-rule (5) of Rule 9B by adding a proviso thereto. The effect of the proviso is that even after finalisation of the provisional assessment under Rule 9B(5), if it is found that an assessee is entitled to refund, such refund shall not be made to him except in accordance with the procedure established under sub-section (2) of Section 11B o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and, therefore, it had to be adjudicated in accordance with the law as it became enforceable from 25-6-1999. In our view, this contention cannot be accepted. 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 sub-rule (5) of Rule 9B. The Commissioner of Central Excise and the CEGAT were, therefore, justified in holding that the claim for refund made by the appellant had to be decided according to the law laid down by this Court in Mafatlal Industries Ltd. (supra) and would not be governed by the proviso to sub-rule (5) of Rule 9B. 6. In the result, we find no merit in appeal. The appeal is accordingly di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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