2012 (11) TMI 647

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....s that consequent to provisional assessment, refund arising on final assessment does not require test of unjust enrichment. This is proposition of law laid down by the Tribunal in the case of Timken India Ltd. vs. CC, Kolkata reported as [2007 (217) ELT 197 (Tri-Kolkatta)]. Also the appellant relied on the decision of Hon'ble High Court of Delhi in the case of CC vs. Indian Oil Corporation - and p....

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....by Kolkata Bench of the Tribunal in para 4.9 of the decision of Timken India Ltd. order cited (supra) by the learned Counsel. For convenience of reading, the said para is reproduced as under:     "4.9 Hon'ble Supreme Court following the ratio laid down in Mafatlal Industries Ltd. case (supra), in the case of Commr. of Central Excise, Mumbai II v. Allied Photographies reported in ....

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....supra) it was held that in cases where duty is paid under Rule 9B and refund arises on adjustment under Rule 9B(5), then such refund will not be governed by Section 11B. Accordingly, it was held that if an independent refund claim is made after adjustment on final assessment under Rule 9B(5), agitating the same issues, then such claim would attract Section 11B. This is because when the assessee ma....

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....4 that refund arising consequent upon finalisation of provisional assessment does not attract the bar of unjust enrichment. While deciding the case in Allied Photographies' case, the Apex Court also, affirmed its decision in Collector of Central Excise, Chennai v. TVS Suzuki Ltd. - 2003 (156) E.L.T. 161 (S.C.). In TVS Suzuki's case, refund on finalisation of provisional assessment accrued to the a....