TMI Blog2018 (3) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty, other provisions and following the decision of the Hon'ble Supreme Court in Commissioner of Central Excise, Chennai Vs. TVS Suzuki Limited, [2003 (8) TMI 42 - SUPREME COURT OF INDIA], held that the relevant date will be the date of adjustment of the duty after final assessment made thereof. In this case, consequent to the order of the Commissioner (Appeals), the refund claim was made. Therefore, it is clear that the date is well within the time stipulated under Section 11B and there can be no dispute raised by the Department on this aspect. Appeal dismissed - decided against Revenue. - CMA No. 1034 of 2009 - - - Dated:- 18-1-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Appellant : Mr. A. P. Srinivas For the Respondents : No appearance ( for R1 ) JUDGMENT ( Order of the Court was delivered by S. Manikumar, J ) Though, M/s.Apex Laboratories, Chennai, 1st respondent has been served and name is shown, there is no appearance either in person or through pleader. 2. Instant Civil Miscellaneous Appeal is filed against the Final Order No.1033 of 2008 dated 23.09.2008, on the file of the CESTAT, Chennai, on the following substantial questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically from the customers and their invoices do not reflect any excise duty amount as they are adopting cum duty price. I do not agree with the above arguments of the appellant as I have been consistently holding the view that in the cases of adopting cum duty price, the burden of excise duty is indirectly passed to the customers. In fact, in respect of the same appellant company, I held the above view vide Order in Appeal No.129/2001(M-II) dated 12.12.2001. I find no reason to change my view and in the instant case I hold that the refund claim is hit by concept of unjust enrichment and I uphold the finding of the lower authority in this regard . 5. Aggrieved by the aforesaid order-in-appeal No.04/2002 (M-III) dated 04.02.2002, the 1st respondent/assessee preferred a further appeal before CESTAT, Madras, the 2nd respondent. Vide Final Order No.1033/08 dated 23.09.2008, the tribunal held that doctrine of unjust enrichment was not applicable to any claim for refund of duty consequential to the finalization of provisional assessment for any period prior to 25.06.1999 and allowed the appeal filed by the assessee. 6. As against the order of the Appellate Tribunal, vide Final Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.06.99 has been threadbare analysed. 10. Learned counsel for the appellant further submitted that in the said judgment, High Court, Mumbai, referred to the amended provisions of Section 11B of Central Excise Act, 1944 (Amended with effect from 01.08.1998) and at paragraph No.23 held as follows: By virtue of the aforesaid amendment to Section 11B with effect from August, 1, 1998, a person entitled to refund on finalization of the provisional assessment under the Excise rules, is required to follow the procedure prescribed under Section 11B of the Excise Act by making an application to the concerned authority before the expiry of six months ('one year' from May, 12, 2000) from the relevant date. Thus, by inserting clause (eb) to the Explanation in Section 11B of the Excise Act, the legislature has made it clear that from August 1, 1998, the refunds required to be made by the Revenue on finalization of the provisional assessments under the Excise Rules have to be claimed by the assessee by making an application within the time specified under Section 11B of the Excise Act. In other words, where refund accrues to the assessee on finalization of the provisional assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st enrichment applies to the refund claim filed on 01.03.2001 filed, consequent to finalization of provisional assessment on 30.10.2000, as the finalization is made after 01.08.98/25.06.99. Hence, according to him, the Appellate Tribunal, was wrong in holding that the doctrine of unjust enrichment is not applicable to any claim or refund of duty consequential to finalization of provisional assessment for any period prior to 25.06.1999. 13. It is the submission of the learned counsel for the department that the appellate tribunal, while holding that the doctrine of unjust enrichment would not apply to refund arising out of finalization of Provisional Assessment for any period prior to 25.06.1999, referred to a few case laws and perusal of the case laws would show that they have either heavily relied on the decisions rendered in the case of Commissioner of Central Excise, Chennai Vs. TVS Suzuki Ltd., reported in 2003 (156) ELT 161 (SC) and Commissioner of Central Excise, Mumbai vs. M/s.Allied photographics India Ltd., [2004 (166) ELT 3 (SC)] or without citing any case law, but merely cited the amendment made to Rule 9 of Central Excise Rules, 1944 with effect from 26.05.1999, to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1046/08 dated 24.09.2008. In the said Final Order, the fact involved was refund arising out of finalization of provisional assessment for the period 1999-2000. The Appellate Tribunal following the decision rendered by the High Court, Mumbai in the case of M/s.Standard Drum and Barrels, cited in the paras supra, held that as the entire claim for refund relates to excess duty paid for the period after 01.08.1998, the doctrine of unjust enrichment is applicable to this case. This decision was rendered one day after the decision rendered in the subject Final Order which is dated 23.09.08. Hence, the Appellate Tribunal, ought to have followed the same ratio applied in their decision rendered on 24.09.2008 viz., the doctrine of unjust enrichment would apply as the refund relates to excess duty paid for the period after 01.08.1998, as the refund covered in the subject Final Order also arose consequent to finalization of provisional assessment on 30.10.2000, which also fell after 01.08.1998. 16. For the abovesaid reasons, Mr.A.P.Srinivas, learned counsel for the appellant prayed for setting aside the Final Order No.1033 of 2008 dated 23.09.2008. 17. Heard the Mr.A.P.Srinivas, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty had not been passed on by him to any other person; Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act. * * * * Explanation - ........... (A) .................... (B) relevant datemeans, -- (a) ........... (i) ......... (ii) .......... (iii) ............... (b) ........ (c) ........ (d) ........ (e) ........ (ea) ........... (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (f) ........ 9. In this case, there is no doubt that clause (eb) to Explanation B of Section 11B is squarely applicable and the assessee also does not dispute the same. But the only issue that is raised here is that whether the refund claim has been made in terms of the said provisions. It is evident from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 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 9-B will not be governed by Section 11-A or Section 11-B, as the case may be. In order to get over the situation arising under Mafatlal Industries Ltd. (Supra) vide notification No.45/99-CE (NT) 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 finalization 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 of the Act. There is no dispute that the refund claim in this case was made much prior to the addition of the proviso in sub-rule (5) of Rule 9B. On the date on which the refund claim was made, the law applicable was the law as declared by this Court in Mafatlal Industries Ltd. (supra) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es would be governed by the rule in Mafatlal Industries Limited (supra) namely that the restrictions in Section 11A and Section 11B would not apply to refund claims consequent upon finalisation of provisional assessment orders. 13. A reading of Section 9B (5) coupled with the judgment of the Supreme Court in TVS Suzuki case (supra), this Court is of the considered view that in the present case also, the refund claim was made on 21.9.98, long before sub-rule (5) to Rule 9B came into force. Therefore, the said decision of the Supreme Court is squarely applicable to the facts of the present case. Accordingly, the 2nd substantial question of law is answered in favour of the assessee and against the Revenue. 14. In the result, the appeal fails and the same is dismissed confirming the order passed by the Tribunal. In the circumstances of the case, there will be no order as to costs. 19. Decision of this Court in Commissioner of Central Excise, Chennai-I, Vs. Dollar Company Private Limited, reported in 2015 (327) ELT 13 (Mad.)., is binding on us and squarely applies to the facts on hand. Following the said decision, substantial questions of law raised are answered in the ..... 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