1999 (7) TMI 449 - AT - Central Excise

Tribunal rejects Revenue appeal on unjust enrichment for provisional assessments, highlights Rule 9B amendment

COMMISSIONER OF C. EX., CHENNAI Versus TVS. SUZUKI LIMITED

The Tribunal rejected the Revenue's appeal against the Order-in-Appeal, which held that unjust enrichment under Section 11B cannot be invoked for refunds ... Refund - Unjust enrichment Issues involved: Revenue's appeal against Order-in-Appeal invoking unjust enrichment u/s 11B for refund due to provisional assessments u/r 9B of C.E. Rules.Summary:The Revenue appealed against the Order-in-Appeal that held unjust enrichment under Section 11B cannot be invoked for refund due to provisional assessments under Rule 9B. The Commissioner relied on judgments by the Supreme Court and Tribunal, including Coastal Gases & Chemicals Pvt. Ltd. v. AC, Visakhapatnam, and Needle Industries (India) Ltd. The Revenue contested the interpretation of the Apex Court's judgment in Mafatlal Industries, arguing that unjust enrichment does not apply to provisional assessments.Regarding the Needle Industries (India) Ltd. judgment, the Commissioner argued that Section 11B(3) was not considered, leading to an erroneous view. The Commissioner contended that granting a refund without proving non-passing of duty incidence would defeat the purpose of Section 11B. Upon review, the Tribunal found that the Commissioner misunderstood the Supreme Court's ruling in Mafatlal Industries, emphasizing that Section 11B does not apply to provisional assessments under Rule 9B.The Tribunal reiterated this stance in the Indo Flogates Ltd. case and noted a subsequent amendment to Rule 9B(5) requiring refunds to follow Section 11B procedures. As the disputed period predated this amendment, the Revenue's appeal based on the amendment was not accepted. Ultimately, the Tribunal found no fault with the impugned order and rejected the Revenue's appeal.