Unjust enrichment in refund claims: provisional assessment did not justify total pre-deposit waiver in this CESTAT matter.

A refund claim arising after duty payment was challenged on unjust enrichment because the duty had been shown separately in gate passes. The applicant argued that provisional assessment and Rule 9B of the Central Excise Rules excluded unjust enrichment, but the Tribunal treated the matter only prima facie for stay purposes and noted the Revenue's contention that refund claims remain subject to unjust enrichment. On that basis, complete waiver of pre-deposit was not justified, and only partial waiver was granted, with a deposit required before the appeal could be heard.

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Issues: Whether the applicant was entitled to total waiver of pre-deposit in an appeal involving a refund claim rejected on the ground of unjust enrichment, and whether provisional assessment excluded the application of that principle at the stage of waiver.

Analysis: The refund claim arose after duty had been paid and the department treated the claim as barred by unjust enrichment because duty was shown separately in gate passes. The applicant relied on provisional assessment and the then-applicable Rule 9B of the Central Excise Rules to contend that unjust enrichment did not apply. The Tribunal noted the Revenue's reliance on the principle that every refund is subject to unjust enrichment and assessed the matter only prima facie for the purpose of stay. On the facts, the Tribunal found that complete waiver was not justified.

Conclusion: The applicant was not entitled to total waiver of the disputed amount, but partial waiver was granted on deposit of Rs. 90,000, with the balance pre-deposit waived for hearing of the appeal.

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