Provisional assessment refund under Rule 9B turns on final duty adjustment, unjust enrichment, and correct abatement calculation.

Finalisation of provisional assessment under Rule 9B requires adjustment of duty already paid against the duty finally assessed, and any excess duty is to be refunded without a separate refund claim where the provision then in force so permitted. The text states that such refund was treated as outside Section 11B and therefore not barred by limitation, and the assessee was not required to establish absence of unjust enrichment for that excess duty. On abatements based on ECP percentage, the authorities' method of calculation was found correct, and the matter was remanded for fresh determination of the eligible refund after hearing the assessee.

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Issues: (i) whether refund arising from finalization of provisional assessment was governed by the limitation under section 11B of the Central Excise Act, 1944; (ii) whether the doctrine of unjust enrichment applied to such refund at the relevant time; and (iii) whether the refund had to be recomputed with reference to the admissible abatements relatable to the assessee's clearances.

Issue (i): whether refund arising from finalization of provisional assessment was governed by the limitation under section 11B of the Central Excise Act, 1944.

Analysis: Rule 9B(5) of the Central Excise Rules, 1944 provided that on final assessment the duty provisionally assessed had to be adjusted against the duty finally assessed and any excess was refundable as a matter of adjustment. The Tribunal relied on the settled position that such refund, when arising directly from finalization of provisional assessment, was not an independent refund claim governed by section 11B at the relevant time. The claim in the present case arose from delayed finalization of provisional assessment and not from a separate refund proceeding.

Conclusion: The objection based on limitation under section 11B was rejected and the finding against the assessee was set aside.

Issue (ii): whether the doctrine of unjust enrichment applied to such refund at the relevant time.

Analysis: The refund related to excess duty determined on finalization of provisional assessment for a period prior to the amendment that brought such cases within the purview of section 11B. On that legal position, the assessee was entitled to refund of the excess duty without being required to establish absence of unjust enrichment.

Conclusion: The objection based on unjust enrichment was rejected in favour of the assessee.

Issue (iii): whether the refund had to be recomputed with reference to the admissible abatements relatable to the assessee's clearances.

Analysis: The authorities found that the assessee had calculated abatements on the basis of overall outlet expenditure and total sales, rather than expenditure relatable to the clearances made by the relevant division and the corresponding admissible percentage. That approach was held to be legally correct, requiring fresh ascertainment of the eligible refund amount.

Conclusion: The matter was remitted to the original authority for recomputation of the refund after determining the eligible amount.

Final Conclusion: The assessee succeeded on the questions of limitation and unjust enrichment, but the quantum of refund required fresh determination on remand.

Ratio Decidendi: Refund arising directly from finalization of provisional assessment under Rule 9B(5) of the Central Excise Rules, 1944, for the relevant period, is an adjustment consequent on final assessment and is not governed by section 11B of the Central Excise Act, 1944, nor by the doctrine of unjust enrichment as then applicable.

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