Gomti Processors Sachin Vs. Commissioner of Central Excise & ST, Surat-I - (Customs, Excise and Service Tax Appellate Tribunal) (17 Jan 2022)

Provisions of unjust-enrichment of Rule 9B(5) of Central Excise Rules, 1944 cannot be applied retrospectively

MANU/CS/0009/2022

Excise

The issue involved in the present case is that, whether the unjust-enrichment is applicable in the facts of this case where the duty was paid provisionally prior to amendment to Rule 9B of Central Excise Rules, 1944 brought into statute with effect from 25th June, 1999.

The appellant submits that the issue is no more res-integra. The amendment was brought into statute with effect from 25th June, 1999 whereby the unjust-enrichment provision was inserted, even in the cases of provisional assessment, the unjust-enrichment is not applicable prior to amendment.

In present case, the duty was paid under provisional assessment during December 1998 to May 1999. At the relevant time, there was no provisions of unjust-enrichment in Rule 9B(5) of Central Excise Rules, 1944 and the same was inserted from 25th June, 1999. Therefore, the provisions of unjust-enrichment of Rule 9B(5) of Central Excise Rules, 1944 cannot be made applicable retrospectively. Hence the refund claim could not have been rejected on the ground of unjust-enrichment.

This Tribunal while dealing with identical facts in the case of Shree Balaji Dyeing and Printing Mills Limited vs. CCE (Appeals) observed that, there was no provision of unjust enrichment in the case of provisional assessment under Rule 9B. This express provision brought into the statute w.e.f. 25th June, 1999 by inserting the Sub-Rule (5) of Rule 9B of Central Excise Rules, 1944. This issue has been considered by this Tribunal's Larger Bench in the case of Commissioner of Central Excise & Service Tax vs. Panasonic Battery India Co Ltd., wherein the Larger Bench held that for the duty paid during the provisional assessment and consequential refund on finalization, the provision of unjust enrichment is not applicable before 25th June, 1999. The facts of the present case are the same as in the above cited judgment. The impugned order is set-aside. Appeal is allowed.

Tags : PROVISIONS UNJUST-ENRICHMENT APPLICABILITY