Refund on finalisation of provisional assessment not barred by unjust enrichment where later Section 11B amendment was not retrospective.

A refund arising from finalisation of provisional assessment under Rule 9B of the Central Excise Rules, 1944 was not governed by Section 11B for the relevant period. The later proviso requiring compliance with Section 11B(2), inserted only from 25-6-1999, could not apply retrospectively to a claim filed before that amendment. The refund was therefore outside the unjust enrichment bar and remained maintainable in favour of the assessee.

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Issues: Whether the refund claim arising from finalisation of provisional assessment for the year 1994 was barred by unjust enrichment under Section 11B of the Central Excise Act.

Analysis: The refund claim arose from finalisation of provisional assessment under Rule 9B of the Central Excise Rules, 1944. For the relevant period, Rule 9B expressly provided that any refund consequent upon finalisation would not be governed by Section 11B. The proviso introducing the requirement that excess duty found payable on finalisation should be refunded only in accordance with Section 11B(2) was inserted later with effect from 25-6-1999 by Notification No. 45/99-C.E. (N.T.). As the claim had been filed before that amendment, the amendment could not operate retrospectively. The claim therefore fell outside the bar of unjust enrichment, consistent with the governing legal position.

Conclusion: The refund claim was not hit by Section 11B and was maintainable in favour of the assessee.

Ratio Decidendi: A refund arising from finalisation of provisional assessment is governed by the unamended Rule 9B applicable at the time of the claim, and a later amendment introducing Section 11B compliance does not apply retrospectively to defeat such refund.

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