TMI Blog2018 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... on of assessment will not hit by unjust enrichment as the provision of unjust enrichment shall not be applicable - the provision of unjust enrichment is not applicable - refund allowed - appeal allowed - decided in favor of appellant. - E/1433/06 - A/85177/2018 - Dated:- 30-1-2018 - Shri Ramesh Nair, Member ( Judicial ) And Shri Raju, Member ( Technical ) Shri J.H. Motwani, Advocate for Appellant Shri A.B. Kulgod, Asstt. Commr. (A.R) for respondent ORDER Per : Ramesh Nair The issue involved in the present case is that whether the provisions of unjust enrichment is applicable in respect of the refunds arising out of finalization of provisional assessments pertaining to period prior to 25.6.1999 even if the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 27 (Bom.) (v) New India Industries Ltd. Vs. Union of India - 1990 (46) E.L.T. 23 (Bom.) (vi) Corn Products Company (India) Ltd. Vs. Union of India - 1991 (55) ELT 460 (Bom.) (vii) Timken India Ltd. Vs. Commissioner of Customs, Kolkata - 2007 (217) ELT 197 (Tri.-Kolkata) (viii) Commissioner of Customs, Kandla Vs. Hindustan Zinc Ltd. - 2009 (235) E.L.T. 629 (Tri.-LB) (ix) Commissioner of Central Excise, Mumbai Vs. CEAT Ltd. - 2016 (331) E.L.T.456 (Tri.-Mumbai) (x) CEAT Ltd. Vs. Commissioner of Central Excise, Mumbai-III (xi) Mafatlal Industries Vs. Union of India - 1997 (89) ELT 247 (xii) Commissioner Vs. T.V.S. Suzuki - 2003 (156) ELT 247 (S.C) (xiii) Commissioner of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of Hon ble Supreme Court in Mafatlal Industries Ltd. Vs. Union of India - 1997 (89) ELT 247 wherein it was held as under: Rule 9B provides for the provision assessment in situation specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the foods which are finally assessed. Sub-rule (5) provides that when the duty leviable on the goods is assessed finally in accordance with the provisions of these rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Kandla Vs. Hindalco Industries Ltd. - 2008 (231) ELT 36 (Guj.) held as under: 18...... when one reads the amendments made in 1998 and the amendment made in Rule 9B of the Central Excise Rules in 1999 considering the pronouncement of the Apex Court as to the distinction between making of a refund an claiming of a refund; the amendment cannot be considered to be retrospective in nature; and cannot be made applicable to pending proceedings . (V) The issue was further considered by the Larger Bench of the CESTAT in Commissioner Vs. Panasonic Battery India Co. Ltd. - 2014 (303) ELT 231 (Tri.-LB ) wherein it was held as under: Entitlement to refund and finalization of provisional assessment under Rule 9B of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata)] while deciding the applicability of the principle of adjustment vis-`-vis refund arising out of finalization of provisional assessment done prior to the amendment of Rule 9B of the said rules has held as under: 6.4?The third question arises is whether refund arising by order dated 10-12-1999 which was a final assessment order under Section 18(2) of the Act as aforesaid shall meet test of unjust enrichment. This issue is no more in res integra in view of ratio laid down by Hon ble Supreme Court in Allied Photographics Ltd. case (supra) and subsequently followed in Civil Appeal No. 4231 of 2001 in the case of CC v. Oriental Exports - 2006 (200) E.L.T. A138 affirming decision of Tribunal in the case of Oriental Exports v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 1988 (38) ELT 27 (Bom.HC). The said decision is no longer good law as the same has been overruled by the Larger Bench of the Hon ble Bombay High Court in the subsequent judgment reported as New India Industries Ltd. Vs. Union of India 1990 (46) ELT 23 (Bom,). The said judgement was also followed by Hon ble Bombay High Court in the case of Corn products Company (India) Ltd. Vs. Union of India 1991 (55) ELT 460 (Bom,). As regard the reliance placed by the Revenue on the decision of CCE Vs. M/s. Christine Holden (2003 (155) ELT 271 CEGAT, CCE vs. M/s. FGP Ltd. 2003 (156) ELT 90 CEGAT and M/s. CEAT Ltd. Vs. CCE 2004 (170) ELT 442, the ratio laid down in the aforesaid cases is based on the fact that Section 11B was squarely appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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