TaxTMI 
TaxTMI 
TaxTMI 
2003 (2) TMI 67
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.... the refund of excise duty for the months of April, 1988 to August, 1988. 2.Thereafter, a show-cause notice dated 22-2-1989 was issued for recovering the said amount on the ground that it was erroneously refunded. By order dated 8-2-1990, the Assistant Collector, Central Excise confirmed the demand for a sum of Rs. 2,36,515.55 on the basis of principles of unjust enrichment by the assessee. The appeal against the said order was dismissed by the Collector (Appeals) by judgment and order dated 20-11-1990. The Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal') also dismissed the appeal by impugned judgment and order dated 20-10-1999. That order is challenged by filing this appeal....
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....the excess duty paid was refunded while assessing the RT-12 Returns. The question, therefore, is - whether the principles of 'unjust enrichment' as incorporated in amended provisions would be applicable to the facts of the present case? 6.Admittedly, refund of the excise duty paid in excess was granted in 1989. Thereafter, sub-section (2) of Section 11B which incorporates the principle of 'unjust enrichment' had come into force w.e.f. 20-9-1991, which inter alia provides that duty of excise paid in excess would be refunded if the manufacturer had not passed on the incidence of such duty to any other person. This provision is not at all attracted. There is basic error in approach by the Authorities below as the assessee has ....
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.... on the basis of the information contained in the return filed by the assessee under sub-rule (3) of Rule 173G and after such further inquiry as he may consider necessary, assess the duty due on the goods removed and complete the assessment memorandum on the return. A copy of the return so completed shall be sent to the assessee. The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed by the proper officer under sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current within ten days of receipt of copy of the return from the proper officer and where such duty is less, ....
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....y the assessee within ten days' time." 8.Further, similar contention was specifically dealt with in Mafatlal Industries Ltd. and others v. Union of India and others [(1997) 5 SCC 536] and it has been held that provisions of Section 11B do not apply where refund has been finally and unconditionally made. The relevant discussion (in paragraph 104) is as under : - "104.Rule 9B provides for provisional assessment in situations specified in clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that "when the duty leviable on the goods is assessed finally in accordance with t....