Provisional assessment refunds under Rule 9B(5) were adjustable directly, without Section 11B refund requirements.

Excess duty paid on provisional assessment was required to be adjusted under Rule 9B(5) of the Central Excise Rules, 1944, because that rule allowed excess duty to be refunded on finalisation of assessment. The earlier legal position treated such adjustment-related recovery or refund as outside Sections 11A and 11B of the Central Excise Act, 1944, while Section 11B applied only to a separate refund claim after final assessment or a challenge to the final order. A later proviso inserted into Rule 9B(5) could not be applied retrospectively to alter the position for the relevant period. The assessee was therefore entitled to adjustment, without proving absence of unjust enrichment under Section 11B.

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Issues: Whether excess duty paid under provisional assessment was required to be adjusted under Rule 9B(5) of the Central Excise Rules, 1944, or whether the assessee had to pursue refund under Section 11B of the Central Excise Act, 1944 by establishing absence of unjust enrichment, and whether the later proviso to Rule 9B(5) displaced the earlier rule position.

Analysis: Rule 9B(5), as applied to the relevant period, provided for adjustment of duty provisionally assessed against duty finally assessed and entitled the assessee to refund of any excess. The Supreme Court had already held that recoveries or refunds consequent upon such adjustment under Rule 9B(5) are outside Sections 11A and 11B, and that Section 11B applies only to a separate refund claim made after finalization or in proceedings challenging the final order. The Court also held that the belated administrative order could not be governed by the subsequently inserted proviso so as to require recourse to Section 11B for the earlier assessment period.

Conclusion: The assessee was entitled to adjustment of excess provisional duty under Rule 9B(5) and was not required to satisfy the requirements of Section 11B; the Revenue's contention was rejected.

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