Provisional assessment refund and unjust enrichment: pre-amendment claims were not hit by the Rule 9B(5) bar.

Refund arising from finalisation of provisional assessment for the pre-amendment period was treated as distinct from a refund claim under Section 11B, so the amended proviso to Rule 9B(5) could not be applied retrospectively. Because the assessment period was 1998-99 and the proviso came into force only on 25.06.1999, the doctrine of unjust enrichment could not be imported to deny the refund. The refund was therefore held admissible to the assessee, and the bar of unjust enrichment did not apply.

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Issues: Whether the bar of unjust enrichment applies to refund arising from finalisation of provisional assessment for the period prior to the amendment of Rule 9B(5) of the Central Excise Rules, 1944.

Analysis: The refund in question arose from finalisation of provisional assessment for the period 1998-99. The proviso to Rule 9B(5), which made the procedure under Section 11B(2) applicable to such refunds, came into force only from 25.06.1999. The settled position of law, including the decisions on refund consequent upon provisional assessment, shows that such a refund is distinct from a claim for refund under Section 11B and that the amended proviso cannot operate retrospectively. Since the assessment period was prior to the amendment, the doctrine of unjust enrichment could not be imported to defeat the refund.

Conclusion: The bar of unjust enrichment was not applicable, and the refund remained admissible to the assessee.

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