AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (1) TMI 1511
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.... they filed price list for approval on 10/10/1987. The Jurisdictional Assistant Commissioner disallowed the deductions claimed by the appellant from the retail price of the goods manufactured and sold by the appellant. On the request of the appellant provisional assessment was ordered; appellant paid duty under protest on the higher value without deductions/abatements. After various litigations before the Commissioner (Appeals), Tribunal and Allahabad High Court, finally a position emerged that the claims for refund filed by the appellant covering the period 10/10/1987 to 31/03/1991 was valid and there was an excess payment of excise duty. The Original Authority sanctioned the refunds but credited the amount to the consumer welfare fund as ....
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....ble Bombay High Court in CCE, Mumbai - II vs. Standard Drum & Barrel Mfg. Co. - 2006 (199) E.L.T. 590 (Bom.). 4. We have heard both the sides and perused the appeal record. We take up the legal issue regarding application of concept of unjust enrichment introduced in the Rule 9B of Central Excise Rules, 1944 readwith Section 11B of the Central Excise Act, 1944 w.e.f. 25/06/1999. We note that the provisional assessment in the present case was prior to the said date. There is no dispute on this. The Larger Bench of this Tribunal in Panasonic Battery India Co. Ltd. (supra) examined a similar dispute. After referring to various decisions of Apex Court, Bombay and Gujarat High Courts, the Tribunal observed as below :- "5. We have carefully he....
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....tion (2) and the interest under sub-section (4), if any, shall, instead of being credited to the Fund, be paid to the importer or the exporter, as the case may be, if such amount is relatable to - (a) the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as speci....
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....trospective in nature; and cannot be made applicable to pending proceedings. 19. This can be considered from a slightly different angle. While introducing the Taxation Laws (Amendment) Bill, 2005 (Bill No. 74 of 2005) the Notes on Clauses in relation to Section 18 of the Act indicate that sub-sections (3), (4) and (5) to Section 18 of the Act, have been inserted to provide for a mechanism to regularise the payments of duty short levied and interest thereon and duties that are to be refunded on finalization of provisional assessment and in this context in the report of the Standing Committee on Finance it has specifically been noted that this amendment became necessary because Section 18 of the Act which provides for provisional assessment....
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....and if necessary, interpret the same but the Court cannot legislate. This is a salutary principle of interpretation. Furthermore, as noticed hereinbefore, the Apex Court has in no uncertain terms drawn the distinction between making of refund and claiming of refund. The High Court cannot equate the two in light of the authoritative pronouncement of law by the Apex Court. 21. Therefore, on both counts, in light of the authorities referred to hereinbefore, and on interpretation of provisions of Section 18 of the Act, on finalisation of assessment if any excess duty is found to have been paid at the time of provisional assessment Revenue is bound in law to make the refund without any claim being required to be made by an assessee. This would....
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....m the provision of refund under Section 11B of the Central Excise Act, 1944. Even under the amendment made by Notification No. 45/99-C.E. (N.T.), dated 25-6-1999 only the procedure established under sub-section (2) of Section 11B of Central Excise Act, 1944 has been made applicable to the refunds arising out of finalization of provisional assessments under Rule 9B of the Central Excise Rules, 1944. Accordingly the procedure regarding application of unjust enrichment to refunds on finalization of provisional assessments will be applicable to the provisional assessments made after 25-6-1999 and not before that date. The addition of proviso to Rule 9B(5) has not been made with retrospective effect. Based on the ratio of the law laid down by Ho....