BHARATI H.DANGRE,J. - (1.) The revenue has filed the present appeal challenging the judgment passed by the CESTAT, West Zonal Bench, Mumbai in Appeal No.E/310/2007-MUM thereby rejecting the appeal filed by the Revenue and holding that the bar of Unjust Enrichment is not applicable to the proceedings of provisional assessment. Resultantly the appeal filed by the Revenue has raised the following substantial question of law :- (I) Whether tribunal is correct in holding that bar of unjust enrichment is not legally applicable to the provisional assessment cases before amendment to Rule 9B. N (II) Whether tribunal is correct in holding that the Show Cause Notice is bad in law as same is not issued under the power vested with the Commissioner under Section 35E(2) of the Act. The appeal is admitted on the said substantial question of law and was heard finally by consent of the parties.
(2.) In order to appreciate the question of law involved in the appeal it would be necessary to deal with the chronological events involved in the said appeal. The respondent M/s. CEAT Ltd manufacturer of tyres had cleared the goods under provisional assessment for the Financial Year 1998-1999 and the same was finalized vide order-in-original No.01/01-02 dated 04.06.2001 and the duty excess paid was determined at Rs.91,59,977/-. Revenue was aggrieved by the said order and filed an appeal before the Commissioner (Appeals) on the ground that the assessee had incorrectly claimed deductions on the assessable value. The Commissioner (Appeals) of the Revenue allowed the Appeal of the Revenue by order dated 04.08.2003. Being aggrieved by the said order the assessee preferred an appeal before the CESTAT and the Tribunal by order dated 28.04.2004 allowed the appeal filed by the assessee and set aside the order passed by the Commissioner dated 04.08.2003. Needless to mention that the said order of the Tribunal has become final as the same was not challenged. Pursuant to the finalization of the Assessment order dated 04-06-2001 an excess amount was paid by the assessee amounting to Rs.91,59,977/-. The assessee therefore claimed the refund of the same and vide order-in-original dated 31-03-2003 the refund was sanctioned and paid to the assessee on 04.04.2003. As regards the issue of unjust enrichment, the learned Assistant Commissioner in the order granting refund specifically observed that "in view of the facts of the case, the order-in-original dated 04.06.2000 passed by the Deputy Commissioner regarding the finalization of the Provisional Assessment for the year 98-99, quantification done on the basis of the CA certificate, verification of the Range Officer and report judicial pronouncements the assessee was held entitled for the quantified refund claim filed by them due to finalization of the provisional assessments for the year 98-99. The Assistant Commissioner also observed that verification of records maintained by M/s. CEAT Ltd in their Bombay office revealed that Regional Office has complete data in respect of year wise total sales and the various discounts passed to the dealers and the accounts of each dealer is maintained separately and also of yearwise total discount passed by the Regional Officer maintained and tallied with the figures at the main office at the CEAT Ltd.
(3.) The Assistant Commissioner also observed that in the year 98-99 the assessment was made provisional as the assessee claimed various discounts from sale price as actual discount was not known to them at the time of the clearance from the factory and moreover assessee was transferring goods to various depots situated in the country and there were dealers/customers. Since, the exact quantum of various deductions claimed by the assessee was not known at the time of the clearance, the assessment for the year 98-99 was made provisional and it was then finalized. Then the Deputy Commissioner, Central Excise vide order dated 04.06.2001 allowed discount on account of the cost of secondary transportation, trade discount, duties and taxes and interest on receivables. On a detailed consideration of the issue, the Assistant Commissioner sanctioned the refund claim of Rs.91,59,977/- to M/s.CEAT Ltd for the year 98-99 vide order dated 04.06.2001 passed by the then Deputy Commissioner Central Excise, Bhandup Division.;