Unjust enrichment in excise refunds: provisional assessment finalisation, appellate relief, and amended Rule 9B(5) determine refund eligibility.

Refunds from provisional assessment finalisation made before the relevant amendment to Rule 9B(5) were not subject to unjust enrichment where the deductions had already been accepted, so Section 11B did not bar those claims. Refunds arising from appellate relief against a final assessment order, including freight deduction allowed only after challenge, fell within Section 11B and required proof that the duty burden had not been passed on. For assessments finalised after insertion of the proviso to Rule 9B(5), the amended rule applied and refund was likewise conditional on compliance with the unjust enrichment bar. The earlier refund was allowed, while the later claims required proof of incidence and were remitted for that limited determination.

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Issues: (i) whether refund arising from finalisation of provisional assessments for the financial years 1988-89 to 1990-91, in respect of deductions already allowed, was barred by unjust enrichment; (ii) whether refund arising from allowance of freight charges on finished goods after challenge to the final assessment in appeal was hit by unjust enrichment; (iii) whether refunds arising from finalisation of provisional assessments for the financial years 1995-96 and 1996-97 were governed by the amended Rule 9B(5) and therefore subject to unjust enrichment.

Issue (i): whether refund arising from finalisation of provisional assessments for the financial years 1988-89 to 1990-91, in respect of deductions already allowed, was barred by unjust enrichment.

Analysis: The assessments for these years had been finalised before the amendment inserting the proviso to Rule 9B(5). The refund related to deductions already accepted on finalisation, and the governing law was the position declared in the Constitution Bench decision on provisional assessment refunds. In that setting, the bar under Section 11B did not apply.

Conclusion: The refund claim for these deductions was not hit by unjust enrichment and was in favour of the assessee.

Issue (ii): whether refund arising from allowance of freight charges on finished goods after challenge to the final assessment in appeal was hit by unjust enrichment.

Analysis: The freight deduction had been disallowed at the stage of final assessment and was allowed only after the assessee successfully challenged that order in appeal. The refund therefore arose as a consequence of appellate relief, not merely from finalisation under Rule 9B(5). In that situation, the governing principle was that refunds consequential to an appeal against the final order under sub-rule (5) fall within Section 11B.

Conclusion: The refund claim on account of freight charges was subject to unjust enrichment and was against the assessee unless incidence of duty was shown not to have been passed on.

Issue (iii): whether refunds arising from finalisation of provisional assessments for the financial years 1995-96 and 1996-97 were governed by the amended Rule 9B(5) and therefore subject to unjust enrichment.

Analysis: Those assessments were finalised after insertion of the proviso to Rule 9B(5), which made refund upon finalisation conditional upon compliance with the statutory refund procedure and the bar of unjust enrichment. Authorities relied upon by the assessee concerned earlier finalisations and did not govern the later assessments. The Tribunal therefore applied the amended rule to the refund claims arising from those years.

Conclusion: The refund claims for 1995-96 and 1996-97 were subject to unjust enrichment and were against the assessee unless the burden of duty was proved to have been borne by it.

Final Conclusion: Refund was upheld for the earlier finalised deductions, while the remaining refund claims were made conditional on proof that the duty incidence had not been passed on, and the matter was remitted to the adjudicating authority for that limited determination.

Ratio Decidendi: Refunds arising merely from finalisation of provisional assessment made before the relevant amendment are not governed by unjust enrichment, but refunds arising as a consequence of appellate relief from a final order under Rule 9B(5), and refunds arising after the amended proviso to Rule 9B(5), are governed by Section 11B and require proof that the duty incidence was not passed on.

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