2019 (11) TMI 955

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....n the ground that the Commissioner (Appeals) has set aside the charge of unjust enrichment. 1.1 M/s ONGC are engaged in production of crude oil. The appellant is making payment of Oil Industries Development Act Cess (OID Cess) on the quantity of crude oil supplied to M/s. IOCL, Baroda. Section 15 of the OID Act requires the appellant to pay a cess on the quantity of crude oil received in the refinery. In the normal course the payment of IOD cess is made after the quantity received is ascertained and therefore there is finality to that assessment. However, in the month of March, 2009 the appellant were required to pay duty by 31 March, 2009. As a result the ONGC paid duty without ascertaining the final amount received and therefore certain ....

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....r argued that no evidence has been produced by the ONGC to discharge the onus of establishing that there is no unjust enrichment. 4. We have considered the rival submissions. We find that while the procedure of provisional assessment has been provided for the convenience of the assessee, it is not a mandatory requirement. In the instant case the claim has been filed within the limitation, and therefore, the refund cannot be denied on that count. The appeal of M/s ONGC on this count is allowed. 5. As regard, unjust enrichment the Tribunal in appellant's own case in identical circumstances has held as follows. "6. We have considered the submissions made by both sides. The precedent decisions cited by the Revenue are not of help because in....

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....of the clause relating to discount to be given based on the percentage of BS&W. No doubt, the assessee should have resorted to provisional assessment, but we are not really required to be concerned with this issue in view of the fact that on merit, department has already accepted the eligibility for refund. As regards unjust enrichment, it is quite clear that the payment is required to be made by IOCL only after taking into account the actual quantity of basic sediments and water and applying the relevant rate of discount. 7. What emerges from the discussion is that the amount payable itself gets determined only after the quantity is received in the refinery and the actual quantity is determined. Therefore, whatever payments are made befo....