Refund from provisional assessment is not time-barred, but unjust enrichment must still be examined before payment.

A refund arising from finalisation of a provisional assessment, later upheld in appeal, is not barred by limitation under Section 11B of the Central Excise Act merely because the duty was not paid under protest. The claim remains linked to the assessment proceedings and is therefore maintainable on limitation. However, refund entitlement is not automatic: the statutory bar of unjust enrichment still applies, so the incidence of duty must be examined by the original adjudicating authority before refund is granted.

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Issues: Whether a refund claim arising from finalisation of a provisional assessment was barred by limitation under Section 11B of the Central Excise Act, 1944, and whether the claim was still required to be examined for the bar of unjust enrichment.

Analysis: The refund related to duty paid during the period covered by a provisional assessment which was later challenged and succeeded in appeal. In such a situation, the claim is linked to the assessment proceedings themselves and limitation under Section 11B does not govern the refund merely because the amount was not paid under protest. At the same time, the entitlement to refund cannot be granted without examining whether the incidence of duty was passed on, since the bar of unjust enrichment remains relevant under Section 11B.

Conclusion: The refund claim was not hit by limitation and was held maintainable, but the matter was required to be examined by the original adjudicating authority on the issue of unjust enrichment.

Ratio Decidendi: A refund arising from a successfully challenged provisional assessment is not barred by limitation under Section 11B, but it must still satisfy the statutory test of unjust enrichment.

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