ORDER
M.V. Ravindran, Member (J)
1. All these six appeals arise out of order in appeal dated 23/08/04 that allowed three appeals of the revenue and dismissed three appeals of the appellant.
2. The relevant fact that arise for consideration are appellant is a manufacturer of Copper concentrate and clear the copper concentrate to their sister concern on payment of duty. Since, the copper concentrate cleared from the appellant’s factory has to be valued based on the concentration of the copper in the consignment cleared from the factory, the appellants applied for and were working under the provisional assessment from 1996. Subsequent to the finalization of provisional assessment, appellants were sanctioned three refund claims by the adjudicating authority. The same adjudicating authority for the subsequent period rejected the refund claim of the appellant on the ground of unjust enrichment. Department and appellant both went in appeal before the Commissioner (Appeals). Learned Commissioner (Appeals) dismissed the appeals filed by the appellant on the ground of unjust enrichment and allowed the appeals filed by the revenue on the very same ground. Hence these appeals.
3. Since all appeals are arising out of same order in appeal on 23rd August, 2004 they are being disposed of by a common order.
4. Learned advocate appearing on behalf of the appellant submits that the issue is now well settled by the judgement and decision of the Larger Bench in the Hon’ble Supreme Court in the case of CCE, Mumbai – II v. Allied Photographies India Ltd. as reported at . It is his submission that all these matters may be remanded back to the adjudicating authority to consider the refund claim in light of Larger Bench decision of the Hon’ble Supreme Court which has settled the law, -that in the case of provisional assessment, the question of unjust enrichment does not arise. Learned SDR on the other hand submits that there is no objection for remanding the matter back, but there should not be any condition set on the lower adjudicating authority.
5. Considered the submissions made by both sides and perused records. It is not in dispute that the clearances made by the appellants from 1996 were under provisional assessment. It is also not being disputed that the provisional assessment for the period from September 1996 to August 1999 were finalized subsequently and all the refund claims which are involved in these six appeals were pursuant to the finalisation of provisional assessment. It is seen that the adjudicating authority allowed the refund claim filed by the appellant in three cases, while in respect of other three refunds the same adjudicating authority rejected the refund claims arising out of the same finalisation of provisional assessment. It would be mis-carriage of justice to reject three refund claims and allow other three refund claims arising out of same assessment.
6. Be that as it may be, it is undisputed that provisional assessment were subsequently finalized by the adjudicating authority and there is no appeal against such fmalisation. In the absence of any appeal against the fmalisation of provisional assessment by either side, the assessment has attained finality. When the assessment are finalized and are arising out of same provisional assessment, the refund claims has to be considered in light of the decision of the Larger Bench of the Hon’ble Supreme Court in the case of Allied Photographies India Ltd. (Supra). The Hon’ble Supreme Court has held as under:
14. As stated above, Para 104 of the judgment in the case Mafatlal Industries Ltd. (supra) states that if refund arises upon fmalisation of provisional assessment, Section 11B will not apply. Para 104 of the said judgement does not deal with payment under protest. In the light of what is stated herein, we may now consider the judgement of this Court in the case Sinkhai Synthetics & Chemicals Pvt. Ltd. (supra). In that matter, the assessee was a manufacturer. The assessee claimed exemption which was denied by the Department. The assessee went in appeal to CEGAT. Pending appeal, assessee paid excise duty under protest. The assessee succeeded before the CEGAT and claimed refund on 17/1/1991. Refund was denied by the Department. Therefore, it was a case of payment of duty under protest. However, in the said decision, this Court applied Para 104 of the judgement 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 judgement in the case of Mafatlal Industries Ltd. (supra) dealt with refund consequent upon finalisation 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 finalisation of provisional assessment on the other hand. This distinction is missed out, with respect, by the judgement of this Court in the case of Mafatlal Industries Ltd. (supra). We may also point out that the judgement 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 judgement is, therefore, per incuriam. Learned Counsel for the respondent herein placed reliance on the judgement of this Court in the case of TVS Suzuki Ltd. (supra). In that case, application for refund was filed. This was on completion of final assessment. On 9/7/1996, the Department issued a show cause notice as to why the refund claim should not be rejected for non-compliance of Section 11B. By order dated 17/7/1996, the refund claim was rejected on the ground that it was beyond limitation. On appeal, the Commissioner (Appeals) observed that the bar of unjust enrichment was not applicable as the assessee claimed refund consequent upon final assessment. He allowed the refund claim. CEGAT agreed with the view of Commissioner (Appeals). Before the Court, the Department conceded rightly that in view of Para 104 of the judgement of this Court in Mafatlal Industries Ltd. (supra), bar of unjust enrichment was not applicable in cases of refund consequent upon adjustment under Rule 9B(5). The judgement of this Court in the case of TVS Suzuki Ltd. (supra), therefore, supports the view which we have taken herein above that refund consequent upon finalisation of provisional assessment did not attract the bar of unjust enrichment.
7. It can be noticed that the Hon’ble Supreme Court have categorically settled the law, as regards the bar of unjust enrichment does not apply upon the finalisation of the provisional assessment.
8. Accordingly, since the lower authorities have not taken into consideration the decision of the Hon’ble Supreme Court in the case of Allied Photographies India Ltd. (supra), the impugned order is set aside and all the matters are remanded back to the original adjudicating authority to decide the question of refund based in light of the decision of the Hon’ble Supreme Court in the case of Allied Photographies India Ltd. Appeals allowed by way of remand.
(Dictated and pronounced in the open court)