Provisional assessment in a classification dispute defeats unjust enrichment and supports refund where duty was paid under protest.

Duty paid under protest during an ongoing classification dispute was treated as provisional assessment where the department repeatedly insisted on execution of a B-13 bond and the record did not show final assessment. On that basis, the statutory presumption of passing on incidence under Section 12B did not apply in the same manner as in a finally assessed case, so the refund claim was not defeated by unjust enrichment. The assessee was therefore entitled to refund.

---

---

Issues: Whether the assessment for the disputed period was provisional, and if so, whether the refund claim could be rejected on the ground of unjust enrichment.

Analysis: The disputed clearances were made while the classification dispute was pending and duty was being paid under protest. The record showed repeated insistence by the department on execution of a B-13 bond, which supported the conclusion that the assessments were not final. The legal position was tested against the requirement that provisional assessment must exist either by an express provisional classification or by an order under the relevant rule permitting clearance on a provisional basis. On that footing, the assessment for the relevant period was treated as provisional, and the statutory presumption under Section 12B did not operate against the assessee in the same manner as in a finally assessed case.

Conclusion: The assessment for the disputed period was provisional, and the refund claim was not barred by unjust enrichment. The assessee was entitled to refund.

Ratio Decidendi: Where duty is paid under protest in the context of an ongoing classification dispute and the assessment is shown to be provisional, the assessee is not required to discharge the burden of unjust enrichment in the same manner as in a final assessment.

---