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5. We also note that the Hon'ble High Court of Bombay had dealt with this specific issue in United Spirits Ltd. case (supra). After considering the facts and pertinent ratio contained in the judgments of the Apex Court in Allied Photographics India Ltd. (supra) and Mafatlal Industries Ltd. (supra), their lordships rendered the following findings:-

"20.?In Allied Photo Graphics India Ltd. (supra) certain refund claims had been filed on behalf of M/s. AGIL. These claims were rejected. Claims were made in 1986. Writ Petition came to be filed in the High Court. The learned Single Judge held that the action of the Department collecting the duty not on the sale price of NIIL to M/s. AGIL was illegal and, therefore, NIIL was entitled to refund. As the question of unjust enrichment was debatable, the question was referred to the Full Bench. After the decision of the Full Bench, the petition was reposted, and Union of India was directed to prove that the tax burden has in fact been shifted to consumers. Pending further examination, the Department was directed to deposit the amount in Court. When the petition came for hearing, NIIL conceded that it had passed on the burden to M/s. AGIL the sole selling distributors of NIIL. The refund claims of NIIL were rejected. The learned Judge directed M/s. AGIL to file affidavit stating whether it had passed on the burden to its dealers or not? After further inquiry, it was held that the Union of India had failed to prove that M/s. AGIL had passed on the burden to its dealers and accordingly, ordered refund of the amount. In an intra Court appeal, the Division Bench took a view that since NIIL had conceded of having passed on tax burden to M/s. AGIL, the question of further examining as to whether M/s. AGIL has passed on burden to its dealers, would not arise and accordingly, the appeal was allowed. Aggrieved, an SLP was preferred and the same was dismissed with clarification that the said order will not prevent M/s. AGIL from adopting appropriate remedy as open to it in law. M/s. AGIL then filed a Writ Petition. Subsequent to the judgment of Mafatlal Industries Limited (supra), M/s. AGIL moved an application for refund before the Department. Refund was ordered against which the matter reached the Supreme Court. On behalf of the Department, it was contended that under the second proviso to Section 11B if duty is paid by the manufacturer under protest the limitation of six months was not applicable, however, the purchaser of duty paid goods, after finalisation of assessment of excise duty payable by the manufacturer, was not entitled to rely upon the said proviso. That in any event, the claim for refund would be governed by Section 11B. Reliance was placed on Mafatlals case (supra). Per contra on behalf of the claimant therein, it was submitted that when a provisional assessment is made under the Act or when excise duty is paid under protest by the claimant, all payments of excise duty are on account payments which are to be adjusted and appropriated only on vacating of the protest or finalisation of assessment. Considering the above arguments, the Supreme Court framed the following point for determination :-
Whether the doctrine of unjust enrichment in Section 11B of the Act is applicable to the facts of this case, having regard to the fact that NIIL (manufacturer) had paid the differential disputed excise duty under protest from 1-3-1974 to 31-10-1984 when the assessment was finalised in favour of NIIL in view of the judgment of this Court in the case of Union of India and others v. Bombay Tyre International Limited, reported in 1983 (14) E.L.T. 1896 (S.C.) = AIR 1984 SC 420? To answer the issue, two points were framed for determination. Firstly, whether refund of duty paid under provisional assessment is similar to duty under protest as both are on account payments adjustable on vacation of protest. Secondly, if in the course of such adjustment or vacation of protest if any amount is payable by the Revenue to the manufacturer, is it open to the purchaser to contend that he has stepped into the shoes of the manufacturer seeking refund of on account payments and therefore, he was not bound to comply with Section 11(B) of the said Act.
The Court noted that there is nothing in Para 95 of Mafatlal (supra) to suggest that payment of duty under protest does not attract the bar of unjust enrichment. Paragraph No. 104 only states that if refund arises upon finalisation of provisional assessment, Section 11(B) will not apply. Relying on this paragraph, it was argued that payment under protest and payment of duty under provisional assessment are both on account payments under the Act. This submission was rejected. The Court held that there is basic difference between duty paid under protest and duty paid under Rule 9B. The duty paid under protest falls under Section 11B and duty paid under provisional assessment falls under Rule 9B. Section 11B deals with the claim for refund whereas Rule 9B deals with making of refund in which case the assessee has not to comply with Section 11B. Therefore, Section 11B and Rule 9B operate in different areas. Proceeding further the Court in Paragraph No. 14 observed as under :-
14.?As stated above, para 104 of the judgment in the case Mafatlal Industries Ltd.(supra) states that if refund arises upon finalisation of provisional assessment, Section 11B will not apply. Para 104 of the said judgment does not deal with payment under protest. In the light of what is stated herein, we may now consider the judgment of this Court in the case Sinkhai Synthetics and 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 scud decision, this Court applied para 104 of the judgment 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 judgment 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 judgment of this Court in the case of Mafatlal Industries Ltd. (supra). We may also point out that the judgment 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 judgment is, therefore, per incuriam. Learned Counsel for the respondent herein placed reliance on the judgment 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 this Court, the Department conceded rightly that in view of para 104 of the judgment 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 judgment 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. The Supreme Court, therefore, held that in order to get refund the Respondent was bound to comply with Section 11B of the Act. (Para 104 is as set out in SCC which corresponds to para 95 in E.L.T.). What was therefore being considered was Rule 9B(5) of the Central Excise Rules before the proviso was inserted w.e.f. 15-6-1999.