2003 (11) TMI 91

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....can be allowed without taking into consideration the doctrine of unjust enrichment after final assessment. 2.Reliance has been placed upon a 3-Judge Bench decision of this Court in the case of Sinkhai Synthetics & Chemicals Pvt. Ltd. v. C.C.E., Aurangabad reported in 2002 (143) E.L.T. 17 wherein from the facts it would appear that a final assessment had taken place. This Court held as follows :....

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....finally assessed, and if the duty provisionally assessed falls short of or in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be'. Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be." It is fairly not disputed by learne....

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....Sub-rule (5) provides that "when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be....

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....1B. It follows logically that position would be the same in the converse situation." (Emphasis supplied) 4.From the portion highlighted above, it appears that the nine-Judge Bench in Mafatlal Industries case is laying down that if a final order is passed, then a refund claim would be governed by Section 11B. 5.Reliance was also placed upon another 3-Judge Bench decision of this Court in t....