Provisional assessment defeats unjust enrichment bar, allowing refund where duty was paid under protest during a classification dispute.

Where duty is paid under a provisional assessment regime, the bar of unjust enrichment under Section 12B of the Central Excise Act, 1944 does not operate in the same manner as in a final assessment, and the assessee is not required to prove non-passing of the duty incidence to sustain a refund claim. The RT-12 returns were treated as provisionally assessed, with the department having required a B-13 bond during a classification dispute and the payments made under protest pending final determination. On that basis, the refund claim was held maintainable and the rejection was set aside in favour of the assessee.

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Issues: Whether the assessment for the disputed period was provisional so that the bar of unjust enrichment under Section 12B of the Central Excise Act, 1944 did not apply to the refund claim.

Analysis: The RT-12 returns for the relevant period were assessed provisionally, and the department had called upon the assessee to execute a B-13 bond in the context of payment of duty under protest. The correspondence showed that the duty payments were made while the classification dispute remained pending, and the assessee consistently maintained that the bond requirement would arise only after final determination of classification. In these circumstances, the assessment was treated as provisional, following the principle that provisional classification or an order under Rule 9B of the Central Excise Rules is sufficient to attract the provisional assessment framework. Once the assessment is provisional, the statutory burden under Section 12B as to passing on the incidence of duty does not operate in the same manner as in a final assessment.

Conclusion: The assessment was held to be provisional, the bar of unjust enrichment was held inapplicable, and the refund claim was held to be maintainable in favour of the assessee.

Final Conclusion: The refund rejection was set aside and the assessee was held entitled to refund of the disputed amount.

Ratio Decidendi: Where duty is paid under a provisional assessment regime, the assessee is not required to discharge the burden of proving that the incidence of duty was not passed on for the purpose of defeating a refund claim on the ground of unjust enrichment.

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