Provisional assessment refund claims were held time-barred not by later amendment, but governed by the earlier Section 11B scheme.

Refund arising from finalisation of provisional assessment was held to be governed by Section 11B, read with Explanation B(eb), which treats the relevant date as the date of duty adjustment after final assessment; on that basis, a refund claim filed on 21.9.1998 was within time. The proviso inserted by Notification No. 45/99-C.E. (N.T.) dated 25.6.1999 to Rule 9B(5), which brought the claim within the Section 11B(2) procedure and unjust enrichment rule, was held not to apply retrospectively so as to defeat refund claims already made before its commencement. The claim was therefore allowed in favour of the assessee.

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Issues: Whether refund arising from finalisation of provisional assessment was governed by the proviso introduced by Notification No. 45/99-C.E. (N.T.) dated 25.6.1999 to Rule 9B(5) of the Central Excise Rules, 1944, and whether the refund claim filed before that date was within time under Section 11B of the Central Excise Act, 1944.

Analysis: The refund claim was filed on 21.9.1998, long before the amendment of 25.6.1999. Section 11B, read with Explanation B(eb), fixes the relevant date in cases of provisional assessment as the date of adjustment of duty after final assessment. On that basis, the claim was within the prescribed period. The amended proviso to Rule 9B(5), which attracted the procedure under Section 11B(2) and the doctrine of unjust enrichment, was held not to operate retrospectively to defeat refund claims already made before its commencement.

Conclusion: The refund claim was not hit by the later amendment and was rightly allowed; the substantial question was answered in favour of the assessee and against the Revenue.

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