TMI Blog2005 (6) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ot figure in today's list are being taken up for disposal along with Appeal Nos. 1029 and 1030 with the consent of both sides. 2. The job workers processed the raw tobacco supplied by the principal manufacturers and cleared the resultant product (branded chewing tobacco) to the latter. These removals were on payment of duty based on the price at which the principal manufacturers sold the goods from their depots. The clearances from the depots were also accompanied by similar payment of duty by the principal manufacturers. The assessable value of the goods, whether in the hands of the principal manufacturers or their job workers, did not include the "average freight". All the parties in their respective declarations filed under Rule 173C h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims did not succeed. The order passed by the lower appellate authority sustaining the orders of the original authority is under challenge in the present appeals. 3. Heard both sides. Ld. Counsel for the appellants submits that, as their refund claims were consequential to finalisation of provisional assessment, the doctrine of unjust enrichment is not applicable. In this connection, he relies on the Hon'ble Supreme Court's judgments in the following cases :- (1) CCE, Chennai v. T.V.S. Suzuki Ltd., 2003 (156) E.L.T. 161 (S.C.) (2) CCE, Mumbai v. Allied Photographics India Ltd., 2004 (166) E.L.T. 3 (S.C.) While ld. Counsel has relied on pararaph-14 of the Supreme Court's judgment in Allied Photographics (supra), ld. SDR ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the original authority on the strength of the Tribunal's decision in JCB Escorts (supra) ceased to have legal effect consequent to the said decision being set aside by the Apex Court vide 2002 (146) E.L.T. 31 (S.C.). All the refund claims under consideration are, admittedly, consequential to the order passed by the Commissioner (Appeals) which became final and binding on both the Revenue and the assessees. From these facts, the moot question has arisen as to whether the order of the Commissioner (Appeals) could be considered to be one of adjustment of duty under Rule 9B. The SCNs, issued for finalisation of provisional assessments, had invoked this Rule and, ultimately, the Commissioner (Appeals) finalised the provisional assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion [45/99-C.E. (N.T.)] did not purport to give retrospective effect to the amendment of Rule 9B(5) and (2) the relevant date for application of Rule 9B(5) is not the date on which the SCN was issued, nor the date on which that notice was adjudicated upon. The event relating to Rule 9B(5) is 'assessment' which relates to excisable goods cleared during the specified period. Hence what is relevant to both provisional and final assessments under Rule 9B is the period of clearance of the excisable goods. Admittedly, this period covered by the SCN referred to by ld. SDR is 1998-99, which is prior to the above amendment. The provisional assessment and its finalisation were for this period. Hence both the provisional and final assessments would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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