Provisional assessment refund: unjust enrichment did not bar recovery when duty was paid under protest after finalisation.

Refund of duty paid under protest following finalization of provisional assessments was held not to be barred by unjust enrichment under Section 11B of the Central Excise Act, 1944, for the relevant period before insertion of Rule 9B(5). The analysis noted that where clearances were made under provisional assessment and the refund arose only on finalization, the doctrine of unjust enrichment did not defeat the claim. It was also clarified that an assessment provisional in one respect could not be treated as final for refund purposes merely because a valuation element had been disputed. The refund claim was therefore maintainable.

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Issues: Whether refund of duty paid under protest, arising from finalization of provisional assessments, was barred by unjust enrichment under Section 11B of the Central Excise Act, 1944, and whether an assessment provisional in one respect must be treated as provisional for all purposes.

Analysis: The subject clearances were made during a period when the assessments were provisional and the refund claim arose only after their finalization. The applicable case law supported the view that, for the relevant period and prior to insertion of sub-rule (5) in Rule 9B of the Central Excise Rules, 1944, refund consequent upon finalization of provisional assessment was not hit by the doctrine of unjust enrichment. The assessment could not be treated as final for the purpose of denying refund merely because one element of valuation had been contested.

Conclusion: The bar of unjust enrichment did not apply, and the refund claim was maintainable. The issue was decided in favour of the assessee.

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