21 - Refund

No. In the case of TECIL Chemicals & Hydro Power Ltd. [2002 (10) TMI 480 - CEGAT, NEW DELHI] , it was held that it is well settled law that when the duty had been paid under protest by an assessee the doctrine of unjust enrichment will not apply to his claim for the refund of the duty subsequently. In this view, we are fortified by the ratio of the law laid down by the Apex Court in Sinkhai Synthetics & Chemicals P. Ltd. [2002 (4) TMI 65 - SUPREME COURT OF INDIA]. In that case, the Apex Court has ruled that “refund of duty paid under protest would not be hit by the bar of unjust enrichment. The recoveries or refunds consequent upon final determination of duty liability would not be covered by Section 11A and Section 11B of the Central Excise Act.” In the face of this ratio of the law laid down by the Apex Court, the appellants are entitled to the refund of the duty amount in question paid by them under protest and the same could not be disallowed or rejected, by the Commissioner (Appeals) by holding it to be hit by the bar of unjust enrichment.

It also remains undisputed that the assessments for the disputed period for which the duty was paid under protest by the appellants, were made provisional. They had been filing the price lists and classification lists from time to time and those were never approved finally during the period in question. In Rajiv Mardia [2001 (3) TMI 129 - CEGAT, COURT NO. I, NEW DELHI], the Larger Bench of the Tribunal has held that clearances of the goods effected pending finalisation of the price and classification lists, would be provisional in nature. 

Unjust enrichment doctrine not bar to refund of duty paid under protest; provisional assessments preserve refund entitlement. The doctrine of unjust enrichment does not bar refund claims for duty paid under protest; recoveries or refunds consequent on final determination of duty liability fall outside bars that would deny restitution. Provisional assessments and unresolved price and classification lists render clearances provisional, supporting the taxpayer's entitlement to have refund claims adjudicated on the basis of final liability rather than dismissed as struck by unjust enrichment.