9911796707
TMI Blog2006 (10) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... nalized the provisional assessment of the Respondent's unit for the period from July 1986 to March 1999. The Restoration Petition filed by the Department in respect of the Appeal No. 10230-31 of 1983 was dismissed by the Supreme Court on 8-3-1999. On finalization of provisional assessment, it was found that the assessee had paid an amount of Rs. 2,12,19,638/- in excess. Therefore, the assessee were asked to file an application for refund under Section 11B of Central Excise Act, 1944, in terms of amended proviso to Rule 9B(5) of the Central Excise Rules, 1944 which relates to unjust enrichment. The Respondents vide their letter dated 9-04-2001 stated that they were not required to file an application for refund under Section 11B of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 118 in respect of the refund arising out of finalization of provisional assessment under Rule 9B(5). With the above observation, the Commissioner (Appeals) allowed the appeal of the Respondents. The Revenue is aggrieved over the decision of the Commissioner (Appeals) on the ground that the law applicable on the date of filing the refund claim should be applied. In the instant case, the provisional assessment were finalized by jurisdictional authority on 19-4-2000 vide its order dated 19-4-2000 and the assessee was asked to file refund application. as per the amended provisions of Rule 9B(5) of the Central Excise Rules and therefore, the law applicable is the amended provision only namely Rule 9B(5) of the Central Excise Rules. hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 29-4-1987 and issued certain directions for computing duty liability and for making assessment with further directions that the assessment initially made stand set aside and fresh assessment be made in accordance with the format order. Subsequently the Supreme Court dismissed the appeal of the Revenue due to non compliance with directions of the Apex Court to the Revenue. The application for restoration of the dismissed appeal also came to be finally dismissed on 8-3-1999 after hearing the Counsel for the Revenue. Therefore, we agree with the learned Respondent that the order of the High Court stand confirmed by the Apex Court. It should be borne in mind that the High Court order is dated 23-9-1982. The implementation of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It should also be kept in mind that during the relevant period, the doctrine of unjust enrichment was not made applicable to the finalization of provisional assessment. In the case of Hyderabad Industries Ltd v. CCE [1998 (97) E.L.T. 434 (Tri.)], it is held that refund due to the assessee pursuant to the orders of High Court and the Supreme Court must be granted especially when those orders have been passed by the Court/s long before the provisions of Section 11B came to be amended in 1991 to take into consideration the question of unjust enrichment, It is well settled that in respect of the provisional assessment finalized by the Revenue, the question of unjust enrichment and application of Section 11B of the Central Excise Act as amende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and prove that there is no unjust enrichment as a precondition for grant of refund already worked out. It was also pointed that the prior to the amendment of Rule 913, there was no need to file any refund claim and refund has to be done suo motu on finalization of provisional assessment. It was also urged that Rule 173-I as it stood earlier mandatorily requires the refund to be given or the demand to be paid without any further proceedings byway of notice, hearing, order, etc. by any authority. In the present case, the assessment was finalized in 2000 on account of the Departmental efforts to go in appeal against the order of the Andhra Pradesh High Court. The plea of the unjust enrichment was already taken before the High Court and the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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