Provisional assessment refunds and unjust enrichment must be tested under the governing regime, with fresh scrutiny required before rejection.

Refund arising from finalisation of provisional assessment had to be examined under the legal regime governing that assessment, including the effect of the amended proviso to Rule 9B(5). The earlier Supreme Court line on provisional assessment held that such refunds were not governed by Section 11B before the amendment, and that later processing delay could not defeat the assessee's entitlement. The rejection of refund on the ground of unjust enrichment was therefore set aside, and the matter was remanded for fresh adjudication on the applicability of unjust enrichment.

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Issues: Whether the doctrine of unjust enrichment applied to refund arising from finalisation of provisional assessment under Rule 9B of the Central Excise Rules, 1944 and Rule 7 of the Central Excise Rules, 2002, and whether the refund rejection required reconsideration.

Analysis: The refund related to finalisation of provisional assessment. The applicable legal position was governed by the law in force for such provisional assessments, including the effect of Notification No. 45/99-C.E. (N.T.) inserting the proviso to Rule 9B(5). The earlier Supreme Court authority on provisional assessment held that refunds consequent upon adjustment under Rule 9B(5) were not governed by Section 11B before the amendment, and that subsequent delay in processing could not defeat the assessee's right. In view of that line of authority, the question whether unjust enrichment applied to the present refund claim required fresh examination rather than summary rejection.

Conclusion: The rejection of refund on the ground of unjust enrichment was set aside and the matter was remanded to the adjudicating authority for fresh decision on the applicability of unjust enrichment.

Final Conclusion: The assessee succeeded to the extent of securing removal of the refund rejection and a fresh adjudication on merits of the unjust enrichment issue.

Ratio Decidendi: Refund arising from finalisation of provisional assessment must be decided according to the governing legal position applicable to that provisional assessment regime, and subsequent procedural delay cannot by itself defeat the claim.

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