‘Unjust enrichment’ bar inapplicable to provisional assessments pre-Rule 9B amendment; Finalization date inconsequential

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HC rules out applicability of principles of unjust enrichment to refund arising out of finalization of provisional assessment of excise duty before amendment to Rule 9B of Central Excise Rules.

HC Observes that entitlement to refund and finalization of assessment under said Rule is independent from the provisions of refund u/s 11B of Central Excise Act; Introduction of proviso to Rule 9B(5) w.e.f. June 25, 1999 subjecting the refund to procedure established u/s 11B would not have retrospective effect.

In other words, it will only apply to provisional assessments made after 1999 and not before that date; Hence, unjust enrichment doctrine will not apply even if assessments are finalized after June 25, 1999, holds HC, while stating that event of payment of excise duty is not completed till finalization of assessment and it  is only thereafter that question of recovery of duty short paid or refund of excess duty would arise.

Relying on SC rulings in Allied Photographics India Ltd, Mafatlal Industries Ltd and ITC Ltd, HC finds no substance in Revenue appeal against CESTAT order  : Bombay HC