TMI Blog2013 (10) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... rned by way of credit notes, refund cannot be denied by invoking the bar of unjust enrichment - assessee has created a situation whereby, there would be only refund claim to be made on the basis of actual quantity discount that is passed on by way of credit notes. The assessee is not passing on the quantity discount by determining it in advance and pay the differential duty where the dealer is not eligible. In case like this, if the assessee were to approach the department for provisional assessment, the Additional Commissioner/Deputy Commissioner would have normally refused to allow provisional assessment since there is no differential duty payable and there is no need for any security or cash deposit since there is no question of any differential duty demand that may arise as a result of provisional assessment. This is a case where the assessee knows definitely there would be only a refund claim since the assessee is paying duty without allowing any quantity discount and therefore only a reduction in the transaction value would occur and consequently only refund claim will arise. The scheme of the act has already been discussed and this would show clearly that this is not what th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Sabrina Cano, Superintendent (AR), for the Respondent. ORDER The two miscellaneous applications have been filed by the assessee for early hearing of the appeal. In Appeal No. E/2375/2012, the stay application has not been decided and in that case the early hearing application No. E/Misc./505/2012 will be premature. Therefore, the same is rejected as premature. 2. As regards the early hearing application No. E/Misc./501/2012 in Appeal No. E/2345/2012, we find that there are several appeals pending on the very same issue before this Tribunal and therefore the early hearing application has to be allowed. Accordingly, all the appeals on the same issue will be taken up for final hearing after the stay order is complied with by the assessee as mentioned at the end of this order. 3. M/s. Sirpur Paper Mills engaged in the manufacture of paper and paper board falling under Chapter 48 of Central Excise Tariff Act, 1985 had filed two refund claims for ₹ 2,95,010/- and ₹ 2,81,258/- on the ground that they had given the quantity discount to their wholesale dealers as an incentive by way of credit notes for the months of April and May, 2011; that the discount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions made in writing by both the sides rather than reproducing only the summary. 6. Accordingly, relevant portions of written submissions (corrected where felt necessary) given by both the sides is reproduced as under : 6.1 Written submission by advocate for the appellant : The above appeals were heard finally by this Hon ble Bench on 26-7-2013. As per the leave granted by this Hon ble Bench we wish to make the following submissions on behalf of the Appellant in the above appeals. It may kindly be noted that the page reference mentioned herein is as per the paper book in Appeal No. E/2375/2012. 6.2 Issues involved : A. When this Hon ble Tribunal has admittedly decided an identical issue on the same facts in favour of the Appellant herein, whether a contrary view can be taken by the very same Bench of the Hon ble Tribunal in the present batch of appeals, when there is no change in the law or facts. B. Whether refund of duty in proportion to quantity discount is admissible on merits when the Appellant has not opted for provisional assessment. C. Whether the bar of unjust enrichment would be attracted when the burden of the excess duty claimed as refund is sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Appeal No. E/2375/2012 and in particular the findings of the Hon ble Tribunal in Para 5 of the aforesaid order which is at page 119 of the paper book. It is further submitted that the impugned order of the Commissioner (Appeals) cannot be sustained, having been passed contrary to his own previous orders, as also those of his predecessors holding the appellant entitled to refund under identical circumstances. The earlier favourable orders of the Commissioner (Appeals) are tabulated below for ease of reference : S. No. O-I-A No. date 1. 14/2007 (H-I) (D) CE, dated 16-8-2007 2. 22/2007 (H-I) (D) CE, dated 29-11-2007 3. 23/2007 (H-I) (D) CE, dated 30-11-2007 4 18/2008 (H-I) (D) CE, dated 30-4-2008 5 22 23/2008 (H-I) (D) CE, dated 16-6-2008 6 27 28/2008 (H-I) (D) CE, dated 10-12-2008 7 4/2010 (H-I) (D) CE to 9/2010 (H-I) (D) CE, dated 24-5-2010 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether refund of duty in proportion to quantity discount is admissible on merits when the appellant has not opted for provisional assessment The Commissioner (Appeals) has not disputed the following facts : a. The excess duty claimed as refund pertained to quantity discount. b. Quantity discount is an eligible discount from the transaction value, as clarified by the Board vide Circular No. F. No. 354/81/2000, dated 30-6-2000. c. The discount was known to both buyer and seller at the time/before clearance, as a common practice and the discount was actually passed on to the buyer. The only reason given for holding that the appellant would not be entitled to refund of the excess duty paid on quantity discount is that the appellant had not opted for provisional assessment. It is submitted that in the context of the admitted facts, the view taken by the Commissioner (Appeals) is contrary to well settled law. An argument was advanced on behalf of the Department that after the coming into force of the amended provisions of Section 4, there is no scope for reduction in the transaction value by reducing trade discounts such as quantity discount which are granted subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods as well as not being returnable for any reason. Further, the Hon ble Tribunal also held in the above case that the bar of unjust enrichment would not apply to the refund of duty paid on quantity discount when credit notes covering the same had been issued, as the following extract would show : As already noted, a part of the discount is passed through credit notes and is adjusted in the outstanding bills of the wholesale dealers. Therefore, discount and tax applicable on it does get adjusted on monthly basis. Therefore, this is not a case where tax has been passed on to the buyers. Therefore, the question of unjust enrichment cannot arise in the present case. Accordingly, the finding on this score is also set aside. The above ruling of the Tribunal has been upheld by the Hon ble Supreme Court by dismissal of the civil appeal filed by the Department as reported in 2007 (212) E.L.T. A152 (S.C.). In the case of Commissioner v. Goetze (India) Ltd. reported in 2011 (263) E.L.T. 477 (Tribunal), the Hon ble Tribunal specifically addressed the issue of eligibility for abatement of turnover/quantity discount extended subsequent to the clearance of the goods under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision for imposing the condition that for permitting the deduction of trade discount, the same has to be passed on to the buyers at the time of sale. Hence, it is settled law that quantity discount cannot be treated as part of transaction value at the time of removal, even though the quantum and eligibility thereto is determined at a later date. As regards the Department s stand that failure to opt for provisional assessment and intimate the Department as to the intention to give such a discount would disentitle the appellant from claiming refund of the excess duty paid on quantity discount, it is submitted that a consistent view has been taken by various Benches of this Hon ble Tribunal that there is no such requirement under the law and it is immaterial whether the assessments are provisional or final. In the case of CCE. Hyderabad v. TFL Ouinn India Pvt. Ltd. - 2011 (267) E.L.T. 641 (Tri.-Bang.) this Hon ble Tribunal has followed various High Courts and Supreme Court rulings holding that the Departmental instructions requiring disclosure of intention of allowing such discounts to the Department and making a request for provisional assessment are not such that fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, it is submitted that this Hon ble Bench in the case of CCE, Hyderabad v. Premier Explosives Ltd., reported in 2008 (226) E.L.T. 729 (Tri.-Bang.), has held that even in cases where there is a subsequent reduction in price pursuant to a price variation clause in an agreement between the buyer and seller, the assessee was required to discharge duty only at the reduced price and that whether the assessment is provisional or not is not at all relevant. The Tribunal further observed that whether the assessment is provisional or not is relevant only for the purpose for determining whether the refund claim is time barred or not. A similar view was adopted in Telephone Cables Ltd. v. CCE, Chandigarh reported in 2003 (154) E.L.T. 237 (Tribunal) where it was held that the fact that the assessee did not seek provisional assessment will not take away its right under Section 11B of the Central Excise Act. This decision was upheld by the Hon ble Supreme Court by dismissal of the Revenue appeal filed by the Department, which was reported in 2004 (163) E.L.T. A117 (S.C.). Similarly, in K.J.V. Alloys Conductors P. Ltd. v. Commissioner of C. Ex., Hyderabad - 2012 (275) E.L.T. 90 (Tri.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that in that case, the facts and issue involved were entirely different from those in the present case. That was a case where there was a subsequent reduction/revision in price for boosting sales, which is distinct from a fixed trade discount as per the discount schedule, known at the time of/prior to the clearance of the goods. Similarly the MRF case, as also the judgment in Mauria Udyog case also did not pertain to deduction of trade discount known at the time and place of removal, but due to a subsequent unilateral lowering of price by the customer. In the present case, both the price and the rate of quantity discount offered are admittedly constant, as known at the time of clearance and hence, there is no change in price, but merely a discounted price on fulfilment of the pre-condition for availability of the discount. As stated supra, the distinction between the two situations has been clearly explained by the Tribunal in the case CCE, Hyderabad v. TFL Quinn India Pvt. Ltd. - 2011 (267) E.L.T. 641 (Tri.-Bang.). Hence, the rejection of the refund claims on merits is contrary to well settled law and therefore not legally sustainable. C. Whether the bar of unjust en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can ultimately claim its refund. (Emphasis supplied) Where such a claim is made, it would be wholly permissible for the Court to call upon the assessee to establish that he has not passed on the burden of duty to a third party and to deny the relief of refund if he is not able to establish the same, as has been done by this Court in I.T.C. In this connection it is necessary to remember that whether the burden of the duty has been parsed on to a third party is a matter within exclusive knowledge of the manufacturer. He has the relevant evidence - best evidence - in his possession. Nobody else can be reasonably called upon to prove that fact. Since the manufacturer is claiming refund and also because the fact of passing on the burden of duty is within his special and exclusive knowledge, it is for him to allege and establish that he has not passed on the duty to a third party. This is the requirement which flows from the fact that Section 72 is equitable provision and that it incorporates a rule of equity. This requirement flows not only because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see claims refund on the ground that he has not passed on the burden of duty to his customer by a specific plea and substantiating the same by producing acceptable evidence, then the appropriate authority shall direct payment of the refund amount to the assessee. The question whether the burden of duty has been passed on to the customer or not is purely a question of fact. The burden of proving the said fact is exclusively on assessee. It is only on discharge of the said burden the assessee would be entitled to the refund of the said amount. The finding of the CESTAT that the events subsequent to the clearance of the goods, raising of the invoice are relevant in deciding the question of refund of duty is not warranted from any of the statutory provisions. On the contrary, the basis for claim for refund is excess duty is to be paid at the time of clearance. As indicated in the invoice, it is only a subsequent event which makes that demand illegal, not warranted, not authorized and gives the assessee a right to seek for refund. In that context, if credit notes are raised and benefit is passed on to the customer, thus not passing on the burden of excise duty the assessee is entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid ruling is immaterial. 6.6 It is further submitted that whether burden of duty has been passed on or not is purely a question of fact. In the present case, there is no dispute that the credit notes issued by the appellant are genuine and that the amount claimed as refund has not been collected from the buyer. Further, there is also no scope to dispute this fact since along with the credit note the appellant issues cheques for the amount covered under the credit notes. Hence, the reliance placed by the Department in the unreported judgment of this Hon ble Tribunal CCE, Hyderabad v. TFL Quinn India Pvt. Ltd. in Final Order No. 528 to 530/2011, dated 19-8-2011 [2011 (267) E.L.T. 641 (Tri.)] is unwarranted, since in that case, on facts, this Hon ble Bench arrived at a finding that it was not established beyond the pale of doubt that the burden of duty had not been passed on. If the aforesaid decision is interpreted as laying down any legal proposition that the subsequent issue of credit notes without corresponding debit notes would not overcome the bar of unjust enrichment, it is humbly submitted that the said decision must be treated as per incuriam, being contrary to authoritat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the transaction value provided it is known prior to the clearance of the goods. (2) The appellants have heavily relied upon the Board s Circular No. 354/81/2000-TRU, dated 30-6-2010 clarifying that quantity discount is a permissible discount. It is submitted that it is not the case of the Department that the quantity discount is not a permissible discount. Rather the case of the Department is that the transaction value determined in terms of Sec. 4(3)(d) of the Central Excise Act at the time and place of removal is the basis on which duty is paid and the duty so paid is a final assessment of the goods. Once goods are cleared on final assessment/determination of transaction value, there is no provision in law for redetermining the transaction value subsequent to the clearance of the goods. Reliance is placed on the Hon ble Apex Court s decision in the case of MRF v. CCE, Madras reported in 1997 (92) E.L.T. 309 (S.C.) wherein it is held that once an assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate the assessee becomes liable to payment of duty on that date and time and subsequent reduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity discount. The subsequent change in the price due to the discount offered to the customer after clearance of the goods does not affect the transaction value already determined and on which duty liability has been discharged. Therefore, the duty paid on the difference in the transaction value cannot be permitted to be claimed as a refund when the assessments were final. As such the refund is liable to be rejected on merits. (4) The appellant has relied on the decision of the Hon ble Tribunal in the case of Bipico Industries (Tools) Pvt. Ltd. - 2009 (247) E.L.T. 811 (Tri.-Ahmd.) wherein it was held that where provisional assessment was not resorted to and department was not informed, the appellant cannot be denied the benefit of deduction of turnover discount which is an admissible discount as per the provisions of Section 4. In this connection, it is submitted that the Hon ble Tribunal in the relied upon case after taking note of the fact that the availability of turnover discount and its quantum were known to both the dealers and the appellants went on to hold that the requirement of provisional assessment and intimation are not prescribed by statute. In this connection, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incuriam may also arise where the decision is rendered ignoring a binding precedent. In view of the above, it is humbly submitted that the decision of the Hon ble Tribunal in the case of Bipico Industries (supra) is per incuriam and is not a good precedent to be followed. (5) Notwithstanding the above, assuming but not admitting that the refund is admissible on merits, the next question for determination is whether the claim for refund is hit by the principle of unjust enrichment inasmuch as the appellant has passed on the discount by way of issue of credit notes. In this connection it is submitted that mere issuance of credit notes to buyers subsequent to clearance of the goods would not have the effect of removing the bar of unjust enrichment. Support is claimed from the Tribunal s Larger Bench decision in the cases of S. Kumar s Ltd. v. CCE, Indore - 2003 (153) E.L.T. 217 (Tri.-LB) and Grasim Industries v. CCE, Bhopal - 2003 (153) E.L.T. 694 (Tri.-LB) besides the Apex Court s judgment in MRF Ltd. v. CCE, Madras - 1997 (92) E.L.T. 309 (S.C.). As regards the judgment of Hon ble High Court of Rajasthan in the case Union of India v. A.K. Spintex Ltd. and Another - 2009 (234) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound by precedent decisions. 9. Before we proceed further, for better appreciation of Section 4 of Central Excise Act and meaning of transaction value as given in Section 4 is reproduced as under : SECTION 4. Valuation of excisable goods for purposes of charging of duty of excise. - (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall - (a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, be the transaction value; (b) in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. Explanation. - For the removal of doubts, it is hereby declared that the price-cum-duty of the excisable goods sold by the assessee shall be the price actually paid to him for the goods sold and the money value of the additional consideration, if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving reasons for payment of duty on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in the form prescribed by notification by the Board with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, deem fit, binding the assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed. (3) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information, as may be required for finalizing the assessment, is available, but within a period not exceeding six months from the date of the communication of the order issued under sub-rule (1) : Provided that the period specified in this sub-rule may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying the provisions of Section 4 of the Central Excise Act and Rules 6 7 of Central Excise Rules, to the present case, the assessee admittedly does not know the quantum of discount that may be payable to a dealer. In fact in the statement of facts submitted by the appellants, appellants have stated appellant offers quantity discount which is given on the basis of quantity of the product lifted by a single customer in a financial year. This is in the nature of turnover discount which is a common trade practice. Hence at the time of clearance, the appellant would not be in a position to determine whether the said customer would become entitled to the quantity discount during the course of the year and if so to what extent. Accordingly the appellant clears the goods to its customers at the wholesale price without granting discount initially but as and when the buyer is found to qualify for discount the appellant gives the discount by way of credit notes . However, it is seen that the refund in this case are only for the month of April and May, 2011. There are two claims, which means that the appellant has been filing refund claim on a monthly basis. This is somewhat at variance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on. This would be the normal situation and this would be procedure appropriate to the system of discount adopted by the appellant in this case. 16. In this case as already observed earlier, the assessee has created a situation whereby, there would be only refund claim to be made on the basis of actual quantity discount that is passed on by way of credit notes. The assessee is not passing on the quantity discount by determining it in advance and pay the differential duty where the dealer is not eligible. In case like this, if the assessee were to approach the department for provisional assessment, the Additional Commissioner/Deputy Commissioner would have normally refused to allow provisional assessment since there is no differential duty payable and there is no need for any security or cash deposit since there is no question of any differential duty demand that may arise as a result of provisional assessment. This is a case where the assessee knows definitely there would be only a refund claim since the assessee is paying duty without allowing any quantity discount and therefore only a reduction in the transaction value would occur and consequently only refund claim will arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les contained in Section 11B of the Act would not apply to past cases. It may, however, be stated that in that case, the proceedings were finalized, transaction was over and the amount was refunded to assessee in 1989. In that fact-situation, this Court held that past finalized transactions could not be reopened on the ground that refund was erroneously granted and there was unjust enrichment. The fact-situation in the present case is totally different. The amount has been passed on to consumers and the claim is made by the Mandal to refund the amount. The ratio laid down in Hindustan Metal Pressing Works, therefore, does not help the appellant. 29. Finally, it was submitted that the doctrine of unjust enrichment has no application. The said doctrine, therefore, could not have been invoked by the authorities for denying the benefit of exemption from payment of excise duty and in refusing to pay the amount to which the appellant was held entitled by diverting it to Consumers Welfare Fund set up by the Government. 30. We are not impressed by that argument also. In our view, the submission is not well founded and cannot be accepted. 31. Stated simply, Unjust enrichment me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the right of the dealer to obtain refund could lawfully be imposed in the interests of general public. 38. In Mulamchand v. State of M.P., AIR 1968 SC 1218, a contract was entered into between the plaintiff and the Government for removal of forest produce. The plaintiff deposited an amount of ₹ 10,000/- and collected forest produce. It was, however, turned out that the provisions of Article 299 of the Constitution were not complied with and the contract was void. The plaintiff claimed refund of ₹ 10,000/- 39. Applying the provision of Section 70 of the Contract Act, 1872 and referring to Fibrosa and Nelson, this Court said : ...It is well established that a person who seeks restitution has a duty to account to the defendant for what he has received in the accounting, by the plaintiff is a condition of restitution from the defendant . 40. In M/s. Amar Nath Om Prakash Others v. State of Punjab Others, (1985) 1 SCC 345 = (1985) 2 SCR 72, Section 23A of the Punjab Agricultural Produce Markets Act, 1961 enabled the market committees to retain the fee levied and collected by them from licensees in excess of the leviable amount if the burden of such fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from them. This Court held that though collection of market fee from the traders was illegal but traders could demand only such amount that had not passed on to the. customers. For that view, the Court referred to Articles 38 and 39 of the Constitution as also discretionary nature of the power under Article 226 of the Constitution. Following Nawabganj Sugar Mills Co. Ltd. v. Union of India, (1976) 1 SCC 120 = (1976) 1 SCR 803, the Court devised a scheme providing for refund of amounts to those from whom illegal collections had been made by traders. 45. In Mafatlal Industries Ltd. also, this Court held that refund of tax/duty wrongfully paid can be claimed on the basis of doctrine of equity and a person demanding such restitution must plead and prove that he had paid such tax/duty and had suffered loss/injury. The burden is on the petitioner to prove that the tax/duty paid by him is not passed on to customers or third party and that he is entitled to restitution. 46. A reference may also be made to a recent decision of the Constitution Bench in Godfrey Phillips India Ltd. Another v. State of U.P. Ors., Writ Petition (c) No. 567 of 1994, dated January 20, 2005. In that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss. The last two sentences in Para 48 would clearly show that only when there is a statutory provision, a person can claim or retain undue benefit. The Hon ble Supreme Court also observed that Section 11B merely gives legislative recognition to this doctrine of unjust enrichment, which means no person can claim a refund unless he is able to show that if the same was not granted, he would suffer loss. 17. By not following the procedure contemplated by law which we have already discussed above, what the appellant has done is that appellant has not passed on the quantity discount to the dealers initially and only at the end of the month the benefit is passed on in the form of credit notes. We all are aware that the first stage dealer or a second stage dealer can pass on the excise duty paid as Cenvat credit to the customer who can take it and utilize the same for payment of duty and final product. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in very great detail as already observed. 19. Further as submitted by the learned DR, the decision of the Hon ble High Court of Punjab and Haryana in the case of Mauria Udyog Ltd. (supra) though rendered quite some time back was not brought to the notice of the High Courts, at all. In this case, the Hon ble High Court of Punjab and Haryana has clearly held that if there is no provisional assessment, there cannot be a refund claim. In fact, the decision of the Tribunal in the case of BIPICO Industries (Tools) Ltd. (supra) relies on the decision of the Tribunal Mauria Udyog Ltd. - 2006 (205) E.L.T. 1012 (Tri.) which was challenged before the Hon ble High Court of Punjab and Haryana and set aside. When the decision in the case of BIPICO Industries (Tools) Ltd. (supra) was rendered, unfortunately the fact that there was another decision of Hon ble High Court of P H was not brought to the notice of the Bench. In Mauria Udyog Ltd. case, the Hon ble High Court after considering the decisions rendered by Hon ble Supreme Court in the case of Metal Forgings, MRF Ltd., came to the conclusion that if the clearance of goods was not made on provisional basis, reduction of a price at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee were to seek provisional assessment, the department would have got an opportunity to refuse the same as not required. (h) Further the fact that the law provides for the buyer to claim refund also goes against the assessee. 21. We are not going into the question as to whether the assessee was eligible for the refund if provisional assessment was to be resorted to since it is not required in this case. Suffice it to say that the procedure contemplated by law and our understanding of law and procedure clearly go against the assessee and further, the decision of the Hon ble High Court of Punjab and Haryana is clearly against the assessee and squarely applicable to the facts of this case. Even though in our own opinion, even if provisional assessments were to be resorted to, the assessee may not be eligible for refund in view of the fact that no assessee can be allowed to create a situation where unjust enrichment of any person is possible as per the decision of the Hon ble Supreme Court, since the same is not required, we are not going into further detailed discussion on this aspect and would not like to give it as our conclusion. 22. Even the decision of the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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