Provisional assessment adjustment: pre-25.06.1999 excess duty can offset short payment without unjust enrichment bar.

For provisional assessments relating to periods before 25.06.1999, excess duty paid could be adjusted against short-paid duty when the assessment was finalised. The bar of unjust enrichment under Rule 9B(5) of the Central Excise Rules, 1944 did not apply to such finalisation, even if the assessment was completed later. On that basis, the demand was held unsustainable and the assessee succeeded.

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Issues: Whether, on finalisation of provisional assessment for a period prior to 25.06.1999, the excess duty paid could be adjusted against the short-paid duty, and whether the bar of unjust enrichment under Rule 9B(5) of the Central Excise Rules, 1944 applied.

Analysis: The relevant period was before the insertion of the proviso to Rule 9B on 25.06.1999. Following the Larger Bench decision relied upon, the adjustment of excess duty against short payment was held permissible at the stage of finalisation of provisional assessment. The bar of unjust enrichment under Rule 9B(5) was held not applicable to such finalisation for the pre-25.06.1999 period, even if the assessment was completed later.

Conclusion: The excess duty was required to be adjusted against the short-paid duty, and the plea based on unjust enrichment failed. The demand was unsustainable and the assessee succeeded.

Ratio Decidendi: For provisional assessments relating to the period prior to 25.06.1999, excess duty paid can be adjusted against short-paid duty at finalisation, and unjust enrichment under Rule 9B(5) does not bar such adjustment.

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