TaxTMI 
TaxTMI 
2018 (2) TMI 134
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....9 (when Rule 9B of the Central Excise Rules, 1944 was amended vide notification No. 45/99-CE(NT) dt. 25.6.1999). 2. Shri J.H. Motwani, Ld. Counsel appearing on behalf of the appellant submits that period in dispute is prior to 25.6.1999 when provision of unjust enrichment was not applicable to the refund claim arising out of the finalization of provisional assessment. It is not disputed that appellant had paid excess duty to the extent of Rs. 56,80,233/- during the period in dispute i.e. 1991-92 to 1996-97. During the said period there was no provisions of unjust enrichment in case of refund arising out of finalization of assessment. He submits that the lower authority have wrongly contended that the refund claim is subject to the provis....
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....s. Allied Photographics India Ltd. - 2004 (166) ELT 3 (SC) (xiv) Commissioner Vs. Sayonara Exports Pvt. Ltd. - 2015 (321) ELT583 (Mad. (xv) Mangalore Refinery & Petrochemicals Ltd. Vs. Commissioner - 2015 (323) ELT 484 (Kar.) (xvi) Kesar Compressors (India) Pvt. Ltd. Vs. Commissioner - 2016 (334) ELT 85 (Tri.-Mum.)] 3. Shri A.B. Kulgod, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impguend order. He also relied upon the following judgments: (i) Sahakari Khand Udyog Mandal Ltd. Vs. CCe - 2005-TIOL-48-SC-CX-LB (ii) Sanat Products Ltd. Vs. CCE - 2015 (323) ELT 682 (All.) (iii) CCE Vs. Standard Drum & Barrel Mfg. Co. - 2006 (199) ELT ....
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.... pay the deficiency or be entitles to a refund, as the case may be". Any recoveries or refunds consequent upon adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be." (II) The issue was further clarified by the Hon'ble Supreme Court in the case of Commissioner vs. T.V.S. Suzuki Ltd. [2003 (156) ELT 247 (SC)] wherein it was recorded as under: "Merely because the departmental authorities took a long time to process the application for refund, the right of the appellant does not get defeated by the subsequent amendment made in sub-rule (5) of Rule 9B. The Commissioner of Central Excise and the CEGAT were, therefore, justified in holding that the claim for refund made by the ....
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....e Rules, 1944 is independent from 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 ....
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....ioner - 2001 (127) E.L.T. 578 holding that Three-Judges Bench in Allied Photographics case - 2004 (166) E.L.T. 3 (S.C.) had also taken the same view, as was taken by the Tribunal, to the effect that the doctrine of unjust enrichment is not applicable to the provisional assessment even after the finalisation thereof." [Emphasis supplied] (VII) The Larger Bench decision of this Hon'ble Tribunal in Commissioner of Customs Kandla Vs. Hindustan Zinc Ltd. [2009 (235) ELT 629 (Tri.-LB)] discusses the requirement for a claim if refund pertains to the period prior to 2006 as under: "In view of the above discussion, there is no doubt that prior to 13-7-2006, refund, which became due on final assessment is to be made without the claim bein....