Prospective application of Rule 9B(5) proviso preserves refund entitlement from earlier provisional assessments against unjust enrichment

Refund arising from provisional assessments finalised before insertion of the proviso to Rule 9B(5) could not be denied by applying unjust enrichment under Section 11B of the Central Excise Act, 1944. The amendment was held prospective and, on the cited Supreme Court principle, could not retrospectively withdraw a refund entitlement that had already crystallised under the earlier legal position. As the provisional assessment period pre-dated the amendment, the later Section 11B compliance requirement did not govern the pending refund claim. The assessee was therefore entitled to refund, and the Revenue challenge failed.

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Issues: Whether refund arising from provisional assessment, finalized before the insertion of the proviso to Rule 9B(5), could be denied on the ground of unjust enrichment under Section 11B of the Central Excise Act, 1944.

Analysis: The refund claim arose from provisional assessments completed before the amendment that introduced the proviso to Rule 9B(5). The governing principle, as applied from the cited Supreme Court authority, is that such an amendment does not operate retrospectively so as to take away a refund entitlement that had already crystallized under the earlier regime. The later amendment requiring compliance with Section 11B could not be applied to pending refund proceedings where the provisional assessment period pre-dated the amendment.

Conclusion: The refund could not be denied on the ground of unjust enrichment, and the assessee was entitled to refund.

Final Conclusion: The Revenue's challenge failed, and the order allowing refund was sustained.

Ratio Decidendi: A proviso inserted to Rule 9B(5) governing refund on finalisation of provisional assessment is prospective and cannot be used to defeat a refund claim that accrued under the earlier legal position.

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