Provisional assessment refunds are subject to unjust enrichment after amendment, even without a formal refund claim.

Refund arising on finalisation of provisional assessment after the amendment of Section 11B and Rule 9B(5) is governed by the amended refund regime, with the date of finalisation/adjustment treated as the relevant date. The absence of a formal refund application does not avoid the statutory requirement to test the claim against unjust enrichment, because the right to refund arises from finalisation of assessment itself. Where the duty incidence has been passed on, refund or adjustment of excess duty is barred. The CESTAT therefore upheld the Revenue's position and held that the assessee could not obtain return or adjustment of the excess amount without satisfying Section 11B(2).

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Issues: Whether refund arising on finalisation of provisional assessment made after the amendments to Section 11B and Rule 9B(5) is governed by the doctrine of unjust enrichment, even where no formal refund claim is filed and the assessee seeks adjustment of excess duty against short payment.

Analysis: The refund in question arose only on finalisation of provisional assessment on 16-1-2006, long after the amendments that made the date of adjustment the relevant date for refund and required any refund to be granted only in accordance with Section 11B(2). The absence of a formal refund application did not alter the statutory obligation of the assessing authority, because the cause of action for refund was the finalisation of assessment itself. Once the statutory scheme applied, the authority had to examine whether the duty incidence had been passed on, and the finding that the assessee had already conceded such passing on remained unchallenged. The earlier decision relied on by the assessee did not assist it, as the applicable law was the law in force on the date of finalisation of provisional assessment.

Conclusion: Refund of the excess duty was subject to unjust enrichment, and the assessee was not entitled to have the excess amount returned or adjusted without satisfying the statutory bar. The Revenue's position was upheld and the appellate order in favour of the assessee was set aside.

Ratio Decidendi: In cases where provisional assessment is finalised after the amendment of the refund provisions, any resulting refund is governed by the amended Section 11B and Rule 9B(5) and can be granted only subject to unjust enrichment, irrespective of whether a formal refund claim is filed.

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