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of <h1>Claim for refund post final assessment: Conflict of decisions on Section 11B referred to Larger Bench</h1> <h3>COMMISSIONER OF C. EX., MUMBAI Versus ALLIED PHOTOGRAPHICS INDIA LTD.</h3> COMMISSIONER OF C. EX., MUMBAI Versus ALLIED PHOTOGRAPHICS INDIA LTD. - 2004 (163) E.L.T. 401 (SC) Issues:Question of allowing a claim for refund without considering unjust enrichment post final assessment.Analysis:In this appeal, the primary issue is whether a claim for refund can be permitted without taking into account the doctrine of unjust enrichment after a final assessment. Reference has been made to a 3-Judge Bench decision in the case of Sinkhai Synthetics & Chemicals Pvt. Ltd. v. C.C.E., Aurangabad, where it was observed that a final assessment had indeed occurred. Subsequently, a nine-Judge Bench in Mafatlal Industries Limited v. Union of India clarified the issue in favor of the assessees. The judgment highlighted the provisions of Rule 9B regarding provisional assessment and the adjustment of duty provisionally assessed against the duty finally assessed. The decision in Mafatlal Industries Limited was acknowledged to govern the appeals, as conceded by the counsel for the Revenue.The judgment in Mafatlal Industries Limited was based on a concession by the Revenue's counsel, and the application of the doctrine of unjust enrichment post final assessment was not specifically addressed. The interpretation of Rule 9B and the applicability of Section 11B in refund claims arising after a final assessment were emphasized. Another 3-Judge Bench decision in Commissioner of Central Excise, Chennai v. T.V.S. Suzuki Ltd. was also cited, where a final assessment was involved, but the latter part of the paragraph from Mafatlal Industries Limited was not considered.It was concluded that the decisions by the 3-Judge Benches seemed to contradict the ruling by the 9-Judge Bench in Mafatlal Industries Limited. Given the significance of the legal question at hand, it was deemed necessary to refer the issue of whether a claim for refund post final assessment is governed by Section 11B to a Larger Bench. The matter was recommended to be placed before the Chief Justice for the constitution of a Larger Bench for further consideration. The dispute regarding provisional assessments in the present case was acknowledged, but it was decided to reserve judgment on this aspect pending determination by the Larger Bench.
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