TaxTMI 
TaxTMI 
2025 (11) TMI 1696
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....Act, 1944 (for short 'the Act') preferred by the appellant i.e. the Customs Department. 3. C.E.A. No. 114 of 2011 is one where the challenge is to the Final Order No. 882 of 2009, dated 26.03.2009 in Appeal No. CE/938/2008, passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zone Bench at Bangalore. The issue in this Appeal relates to the period between February, 1985 to 26.04.1995. Further, C.E.A. No. 155 of 2017 is one where the challenge is to the Final Order No. A/30782/2016, dated 03.08.2016 in Appeal No. E/964/2011, passed by the Customs, Excise and Service Tax Appellate Tribunal, Regional Bench, Hyderabad. 4. Vide the impugned order in C.E.A. No. 155 of 2017, the CESTAT held that pursuant to the Final Order No.882 of 2009, dated 26.03.2009, refund arising out of the finalization of provisional assessment during the period February, 1985 to April, 1995 need not pass the test of unjust enrichment and accordingly held that the assessee is entitled for refund of Rs. 2,86,39,117/- for the period between March, 1985 to April, 1991 and March, 1994 to April, 1995. 5. In C.E.A. No. 155 of 2017, the claim of the assessee was finalized in terms of the order....
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.... of applicability of the provisions of unjust enrichment in case of payment of duty under protest) to be per incuriam, Hon'ble Supreme Court has affirmed their judgment in the case of T.V.S. Suzuki Ltd. [2003 (156) E.L.T.161 (S.C.)]. It is requested that the field formations in your charge be informed of this judgment and disposal of pending cases." 9. The Hon'ble Supreme Court in Commissioner of Central Excise, Chennai vs. T.V.S. Suziki Ltd. 2003 (156) E.L.T. 161 (S.C.) referring to an earlier landmark decision on the subject in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors. (1997) 5 SCC 536 in paragraph Nos.4 to 7 has held as under: "4. There is no dispute that the refund claim in this case was made much prior to the addition of the proviso in sub-rule (5) of Rule 9B. On the date on which the refund claim was made, the law applicable was the law as declared by this Court in Mafatlal Industries Ltd. (supra) which we have reproduced above. However, it is contended by the learned counsel Shri Verma for the department, that the claim of refund would be governed by the proviso introduced in sub-rule (5) of Rule 9B, and that as a consequence, the restric....
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....rs. Hence, these appeals are dismissed. No costs" 10. The said view was also reiterated in Commissioner of C. Ex., Mumbai-II vs. Allied Photographics India Ltd. 2004 (166) E.L.T. 3 (S.C.), wherein in paragraph Nos. 12 and 14, it has been held as under: "12. In the present case, reliance was placed by the respondent M/s APIL on the above para in support of its contention that payment of duty under protest and payment of duty under provisional assessment are both "on account" payments under the Act. We do not find any merit in this argument. As discussed, there is a basic difference between duty paid under protest and duty paid under rule 9B. The duty paid under protest falls under section 11B whereas duty paid under provisional assessment falls under rule 9B. That section 11B deals with claim for refund whereas rule 9B deals with making of refund, in which case the assessee has not to comply with section 11B. Therefore, section 11B and rule 9B operate in different spheres and, consequently, in para 104 of the said judgment, it has been held that in cases where duty is paid under rule 9B and refund arises on adjustment under rule 9B(5), then such refund will not ....
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....t. Therefore, it was a case of payment of duty under protest. However, in the said decision, this Court applied para 104 of the judgment of the Constitution Bench in the case of Mafatlal Industries Ltd. (supra), which with respect, had no application. As stated above, para 104 of the judgment in the case of Mafatlal Industries Ltd. (supra) dealt with refund consequent upon finalization of provisional assessment. Para 104 does not deal with refund of duty paid under protest. As stated above, there is a difference under the Act between payment of duty under protest on one hand and refund consequent upon finalization of provisional assessment on the other hand. This distinction is missed out, with respect, by the judgment of this Court in the case of Mafatlal Industries Ltd. (supra). We may also point out that the judgment in the case of Sinkhai Synthetics & Chemicals Pvt. Ltd. (supra) is based on the concession made by the counsel appearing on behalf of the Department. That judgment is, therefore, per incuriam. Learned counsel for the respondent herein placed reliance on the judgment of this Court in the case of TVS Suzuki Ltd. (supra). In that case, application for refund was filed.....
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....sessment even after finalization of the proceedings. 4. It is brought to the notice of this Court that a judgment subsequent to the ruling in "Allied" i.e. "Sahakari Khand Udyog Mandal Ltd. vs. Commissioner of Central Excise & Customs" [(2005) 3 SCC 738] appears to have expressed a different view in that the Court held that to maintain a claim for refund, the assessee has to establish that he or it had paid the amount for which relief is sought and had not passed on the burden to the consumers. This judgment though rendered by a three Judge Bench, overlooked the ruling in Allied (supra). Furthermore, even though the judgment has generally referred to the nine Judge Bench ruling in "Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors." [(1997) 5 SCC 537], nevertheless the specific observations in para 104 appears to have escaped the attention of the Court. Para 104 in Mafatlal Industries Ltd., is extracted below: 104. Rule 9-B provides for provision 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 whic....
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....of the Circular of the Central Board of Excise and Customs, we have no hesitation in holding that the question of law framed has to be answered in favour of the assessee and against the Revenue and it is ordered accordingly. In the result, C.E.A. No. 114 of 2011 stands dismissed. 13. Now we proceed to decide the second C.E.A. i.e. C.E.A. No. 155 of 2017. The substantial questions of law framed in this appeal for ready reference are reproduced hereunder: "Whether the Hon'ble CESTAT's decision is correct in holding that refund arising out of the finalization of provisional assessment during the priod February'1985 to April'1995 need not pass the test of unjust enrichment as the amendment to sub-rule (5) of Rule 9B came into force only w.e.f. 25.06.1999? and Whether the Hon'ble CESTAT's Final Order was correct in setting aside the impugned Order-In-Appeal dt.30.08.2011 passed by the Appellate Authority and decided the case without discussing on the grounds put forth and the case laws referred therein ?" 14. What needs to be appreciated is the fact that the impugned order of CESTAT itself in this case was based upon the order of the CESTAT earlier passed on 26.0....