Refund from provisional assessment finalised before amendment not barred by unjust enrichment; later filing did not change the claim's character.

Refund arising from finalisation of provisional assessment, where the assessment was completed before the amendment inserting the proviso to Rule 9B(5), accrued prior to the amendment and retained that character notwithstanding later filing or processing of the refund claim. The subsequent amendment did not retrospectively convert the refund into a fresh post-amendment claim, so the amended bar of unjust enrichment was inapplicable. The assessee was entitled to the refund.

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Issues: Whether refund arising from finalisation of provisional assessment, completed before the amendment to Rule 9B(5), was barred by unjust enrichment and could be denied merely because the refund application was filed after the amendment.

Analysis: The provisional assessment was finalised and the excess duty payable was determined before the amendment introducing the proviso to Rule 9B(5). The right to refund therefore accrued prior to the amendment. The subsequent delay in filing or processing the refund application did not alter the character of the refund, which arose from finalisation of provisional assessment and not from a fresh post-amendment claim. The amended bar of unjust enrichment was held inapplicable to such refund.

Conclusion: The refund was not hit by unjust enrichment and the assessee was entitled to refund.

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