TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 978
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....e and Mr. Sumanth Chanda, learned counsel representing Mr. Lakshmi Kumaran Sridharan, learned counsel appearing for the respondent. 2. On the joint request, appeal is finally heard. 3. This appeal is filed under Section 35 (G) of the Central Excise Act, 1944 (for short, 'the Act, 1944') and it was admitted on the following substantial question of law: "Whether the Hon'ble Tribunal, Bangalore is justified in passing its Final Order No. 513 to 516/2007, dt.01.05.07, ignoring the relevant date under Section 11(5) (B) (eb) of Central Excise Act' 1944, i.e, 'in case where the duty of excise is paid provisionally under this Act or rules made thereunder, the date of adjustment of duty after the final assessments thereof' while holding that the....
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....01.1996 to 31.03.1998. The assessee unsuccessfully challenged in Appeal No.7 of 2005 (H-IV) CE, which was decided on 28.01.2005. This appellate order became subject matter of challenge before the CESTAT, which passed the impugned order on 01.05.2007. This order of CESTAT is subject matter of challenge before this Court. 5. Sri A. Rama Krishna Reddy, learned Standing Counsel for the appellant fairly submits that the first issue was regarding admissibility of interest on Sundry Debtors as a deduction in finalization of Provisional assessments under Rule 9B of the Central Excise Rules, 1944 (for short, 'the Rules, 1944') for the period prior to 1996. The Department accepted the order of CESTAT on this issue. Learned counsel further submits th....
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....after taking note of the Constitution Bench Judgment in Mafatlal (supra) and other Supreme Court Judgments on the point, the Bombay High Court clearly held that newly inserted proviso to Rule 9 B (5) of the Rules, 1944 can be made applicable w.e.f 25.06.1999 and it does not have any retrospective effect. Therefore, the principle of 'unjust enrichment' cannot be made applicable to the funds arising out of finalization of the provisional assessments pertaining to the period prior to 25.06.1999, despite the fact that the assessments were finalized after 25.06.1999. It is informed that this judgment of Bombay High Court is not interfered with by the Supreme Court. 8. The next submission is based on the Judgment of the Supreme Court in CCE, Che....
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....im for refund by the Assessee under Section 11B of the Excise Act, 1944 and therefore, the burden of unjust enrichment applies. However, the material on record, which is not in dispute, discloses that the duty was paid in pursuance of a provisional assessment whereas in the final order of assessment, the Assessing Authority directed the Assessee to pay the differential duty. The said order was challenged before the Appellate Authority. The Appellate Authority set aside the said order and directed for re-determination of the duty payable by the Assessee. After said re-determination of the duty payable, the Assessing Authority found that the duty paid by the Assessee is in excess of what is liable to be paid under the Act. The amount was quan....
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....the instant case, the relevant period is from 1-10-1975 to 28-2-1983 before the amendment to Section 11 (2) of the Act. This is not a case arising out of Section 11B of the Act The refund is paid in pursuance of the finalization of the provisional assessment order and in fact, the Assessing Authority was right in holding that the doctrine of unjust enrichment does not apply in the facts of the case relying on the judgment of the Constitution Bench as well as subsequent decisions." 16. In view of the settled position of law, it is clear that the entitlement to refund and finalization of the provisional assessment under Rule 9B of the Central Excise Rules, 1944 is independent from the provisions of refund under Section 11B of the Central Exc....
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....of 'unjust enrichment' cannot be pressed into service about refunds arising out of finalization of the provisional assessment pertaining to the period prior to 25.06.1999 even if the assessments are finalized after 25.06.1999. 14. The present case has great similarity with the aforesaid matter where the provisional assessment was relating to period prior to 25.06.1999 and assessments are finalized after 25.06.1999. 15. Apart from this, the Apex Court in TVS Suzuki (supra) opined as under: "3. In order to get over the situation arising under Mafatlal Industries Ltd., (supra) vide notification No. 45/99-C.E. (N.T.), dated 25.06.1999, an amendment was made in sub-rule (5) of Rule 9B by adding a proviso thereto. The effect of the proviso is....