TMI Blog2003 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of provisional assessment under Rule 9B of the Central Excise Rules, 1944; that after the judgment of the Supreme Court in Government of India v. M.R.F., 1995 (77) E.L.T. 433, the Assistant Commissioner under Order dated 31-3-1997 disallowed certain expenses; that thereafter the Appellants submitted papers, documents and evidence to the Range officer and on the basis of these evidences submitted by them, the Assistant Commissioner passed the Order dated 5-5-1997 finalising the provisional assessment for 17 years [1974-75 to 1987-88 and 1991-92 to 1993-94]; that the Assistant Commissioner after referring to monthly despatches, monthly duty paid in respect of each brand of goods, brandwise calculation of assessable value and duty p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required documents evidencing payment of duty of excise, the adjustment of duty on finalisation of provisional assessment remained pending till 18-12-2000 and "when the Assistant Commissioner had decided their all seventeen refund claims on 18-12-2000, Rule 9B of Central Excise Rules, 1944 was in effect in amended form as amended vide Notification No. 45/99-C.E. (N.T.), dated 25-6-99 and according to such amendment it was mandatory on the part of the appellants to produce evidence showing that burden of incidence of duty had not been passed on to the customers. In addition to above the Assistant Commissioner rejected all the refund claims on account of non-submission of documents along with refund claim as required under Section 11B(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of unjust enrichment contained in Section 11B of the Act do not apply to provisional assessments during the period prior to issue of Notification No. 45/99-C.E., (N.T.), dated 25-6-1999 amending Rule 9B(5). (v) Smithkline Beechem Consumer Healthcare Ltd. v. CCE, Guntur [2001 (137) E.L.T. 125 (T) = 2001 (47) RLT 460 (CEGAT)]. (vi) CCE, Meerut v. Modi Paints Varnish Works, 2000 (38) RLT 302 (CEGAT). 4.3.He, further, mentioned that the amendment made in Rule 9B is prospective only and is not retrospective in nature; that the said amendment came into effect after 25-6-99 whereas in the present matter, the refund claimed is in respect of years 1974-75 to 1993-94 for which the assessments were earlier provisional and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d arising out of finalisation of provisional assessment will be subject to principles of unjust enrichment. The learned SDR finally submitted that the amendment made in Rule 9B(5) is only clarificatory in nature and any clarificatory amendment has retrospective effect. 6.We have considered the submissions of both the sides. It has not been disputed by the Revenue that the assessments were provisional on account of claim of deduction of post-manufacturing expenses. The Assistant Commissioner decided the question regarding deduction of expenses from the assessable value under Memorandum dated 31-3-97 after the decision of the Supreme Court in M.R.F. case. Subsequently, the Assistant Commissioner, by passing separate Order for each financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 8.The Constitutional Bench of the Supreme Court in the case of Mafatlal Industries has observed that "Any recoveries or refund 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." This has been the view of the Madras High Court in the case of Hajee A.M. Abdul Rahiman, supra which has held as under : "We are bound by the judgment of the Constitutional Bench having regard to the unambiguous statement of the law that Section 11A or Section 11B will not govern any recoveries or refund consequent upon the adjustment under sub-rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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