TaxTMI 
TaxTMI 
2018 (8) TMI 357
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.... Revenue Department that the incidence of duty has not been passed on to the customers, to avoid 'unjust enrichment' to the Respondent-assessee by making such refund/adjustment. 3. The Respondent-assessee, a Government of India Undertaking, under the contract are the manufacturers and suppliers of telecommunication equipments to the Department of Telecommunication (DOT) another Central Government Department which later on became BSNL again a Government of India Undertaking during the relevant period of 1998-99 to 1999-2000 and at the time of removal of the goods and sale thereof to the Department of Telecommunication/BSNL but since the final price of the goods sold were to be determined under the contract between the Respondent-assessee and the purchasing Government Department of DOT/BSNL, the goods were allowed to be cleared on the basis of the provisional assessment and payment of provisional duty by the Respondent-assessee for which Rule 9B of the Rules as it stood then required determination u/r. 9B(5) of short duty, if any paid and the adjustment or refund of excess provisional duty, an order to be passed under Rule 9B(5) of the said Rules. 4. The said Rule 9B(5) including i....
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....us Rs. 8,12,032/-) which was required to be paid to the department, out of which the appellant had already paid Rs. 5,53,23,703/- vide R.G.- 23 A part II Sl.No.751/- dated 18-05-2001 and the appellant should pay the balance amount of Rs. 8,12,032/-. The appeal filed by M/s. Indian Telephone Industries Limited, Bangalore is disposed of in the above terms. Sd/- (Kamal Jyoti) Commissioner Central Excise Appeals-I, Bangalore" 6. The appellant-Revenue filed an appeal against the said order before the CESTAT, South Zonal Bench, Bangalore, which dismissed the appeal filed by the appellant-Revenue on 25.10.2016 upholding the order passed by the learned Commissioner of Central Excise (Appeals-I), Bangalore, following the Larger Bench decision of the Tribunal itself in the case of Hindustan Zinc Ltd. vs. Commissioner of Central Excise, Jaipur, (2015-TIOL-2427-CESTAT-DEL). The relevant para-7 of the order passed by the Tribunal is quoted below for ready reference: "7. We have heard both sides and gone through the records in detail. We find that the decision cited by the learned advocate in the respondent's own case dealing with the finalization of provisional assessments for a different ....
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.... the incidence of provisional duty paid by it at the time of removal of goods. 9. This Court even called upon the Respondent- assessee to file an Affidavit in this regard also, which was accordingly filed in this Court on 01.07.2017. The said Affidavit is sworn to by Mr.K.Srinivasa Murthy, working as DGM-Finance, (Employee No.19590) of the Respondent-assessee, ITI Ltd., Bengaluru. A Report was called from the appellant-Revenue on the said Affidavit filed by the Respondent-assessee. 10. The appellant-Revenue submits before us to the effect since the Respondent/assessee-a Government of India Undertaking has not provided any proof contrary to the invoices produced by it as in proof of not having passed the burden excess duty, therefore the adjustment/refund as claimed by the Respondent- assessee under Rule 9B of the Rules, cannot be allowed to it. 11. A counter to the said Report of the Department was also been filed by the Respondent- assessee on 11.06.2018 contradicting the submissions made on behalf of the appellant-Revenue and in support of the orders passed by the two Appellate Authorities below granting the adjustment of the excess provisional duty paid by the Respondent-asse....
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.... Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) reagitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation". 11. At the outset it may be pointed out that in Para 104 there is nothing to suggest that payment of duty under protest does not attract bar of unjust enrichment. Para 104 only, states that if refund arises upon finalization of provisional assessment, Section 11B will not apply." 13. Though we find a reference to the aforesaid Hon'ble Supreme Court decision in the order passed by the Assessing Authority himself, namely, the Assistant Commissioner of Central Excise, Bangalore I Division, vide Annexure-B dated 29.12.2006 in CEA No.30/2017 & CEA No.62/2017 towards the end of para-6 of the said order, but it seems the ratio of the said judgment has not been applied by the said Assessing Authority at all and the said Authority still found it necessary for the Respondent-assessee i.e., ITI Ltd. to take recourse to Section 11B of ....
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.... such a concern by us in the present case. The Government authorities or Departments may be unwilling respondents or parties to the litigation before the Constitutional Courts and they take a major share of that, but we cannot appreciate the Central Government Departments or Authorities becoming the willing litigators or appellants in the Constitutional Courts by initiating such thoughtless and unnecessary appeals, writ petitions or revision petitions. 16. The various Litigation Policies framed by the Government to reduce the litigation in Courts do not seem to have touched the ground where these authorities really work or take decisions to initiate such litigation. We are hopeful that the concerned persons in the Government will awaken to this stark reality and take more well reasoned and considered decisions before launching a trail of litigation in the Courts of law. 17. We are not impressed with the arguments raised by the learned counsel for the appellant-Revenue before us that in view of the Proviso of Rule 9B(5) of the Rules w.e.f. 25.07.1999 merely because the order u/r 9B(5) came to be passed after the date in the year 2006, the Respondent-assessee was required to take r....