Provisional assessment refund was not barred by unjust enrichment and had to be granted on finalization of assessment.

Refund arising from provisional assessment was treated as outside the bar of unjust enrichment under Section 11B of the Central Excise Act, 1944 for the relevant period, because the refund claims had been filed before finalization and before the later proviso to Rule 9B(5) of the Central Excise Rules, 1944 took effect. The claim was also within time on the facts noted. On that basis, the refund was payable on finalization of assessment, with consequential consideration of interest.

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Issues: Whether refund arising from finalization of provisional assessment was barred by limitation and unjust enrichment, and whether the assessee was entitled to refund on the basis of the claim already filed.

Analysis: The refund claims were pending when the provisional assessment was finalized. The relevant claim had been filed before finalization of assessment, and the proviso to Rule 9B(5) of the Central Excise Rules, 1944 came into force only later. On the applicable legal position, refund arising from provisional assessment during the relevant period was not governed by the bar of unjust enrichment under Section 11B of the Central Excise Act, 1944. The Tribunal also accepted that the assessee had filed the claim within the relevant time and was entitled to refund on finalization of assessment.

Conclusion: The refund was not barred by time limitation or unjust enrichment, and the assessee was entitled to refund of the claimed amount.

Final Conclusion: The appeal succeeded and the original authority was directed to grant the refund with consequential consideration of interest.

Ratio Decidendi: Refund arising from provisional assessment, for the period before the amendment making unjust enrichment applicable, is not hit by Section 11B of the Central Excise Act, 1944 and must be granted on finalization of assessment.

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