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Correspondingly, if any amount is found to be repayable by the Department to the appellant on such taking of accounts, then that amount has to be refunded without going through section 11B. In this connection reliance was placed on the judgment of this Court in the case of CCE v. National Tobacco Co. of India Ltd. reported in [AIR 1972 SC 2563]. According to the learned counsel the same principle was applicable in cases where the Department has to refund moneys to the appellant on finalization of the assessment; which principle has been reiterated vide para 104 of the Mafatlal judgment. Accordingly it was submitted that the doctrine of unjust enrichment in section 11B would not apply to the present case. Lastly it was urged that the argument of the Department was based entirely on section 11B (3) which had no bearing on the basic issue as to whether section 11B(2) was at all applicable particularly when the appellant was seeking refund of an "On account" payment made Under Protest or under the Provisional assessment". Therefore, the reliance on section 11B(3) was misplaced. That in the circumstances, neither Sinkhai Synthetics nor T.V.S. Suzuki can be said to be in any way incorrect, much less per incuriam. On merits, learned counsel for the respondent submitted that the question as to whether the burden of duty has been passed on to the consumer is to be answered by relying on one singular test viz. whether the manufacturer has increased his sale price in order to pass on the disputed amount and not whether the manufacturer has made profits or losses. In this connection, reliance was placed on judgments of the Appellate Tribunal having been accepted by the Department that composition of costs incurred by M/s APIL was not relevant and the only relevant factor was whether M/s APIL had increased its sale price to its dealers after it was required to pay the differential amount of excise duty in the form of the increased price charged to it by NIIL. In this connection it was submitted that M/s APIL did not increase its sale price after it was required to bear the differential amount of excise duty of 1.62% in the form of the enhanced purchase price paid by it to NIIL and on the contrary, far from enhancing its sale prices, M/s APIL granted discounts between 2% to 4% on the sale price charged by it to its dealers and this discount was more than the disputed differential amount of excise duty which came to 1.62% of the price. It was submitted that the case of M/s APIL has been accepted by all the authorities below and that this Court should not interfere with the concurrent findings of fact recorded by the authorities below. In this connection it was submitted that the said findings were based on the audited accounts of APIL; certificate of Chartered Accountant, Sale Invoices of APIL and two affidavits filed on behalf of APIL. It was further urged that in the case of Mafatlal (supra) it has been held that where the claim for refund relates to the period prior to 20.9.1991, any evidence which reasonably shows that the disputed duty has not been passed on to the dealers/customers in the form of increased price would suffice and the claimant is not required to produce documents specified in section 12A which has prospective operation. Hence, M/s APIL (respondents herein) had not increased the sale price for recovering the additional disputed duty burden of 1.62% which was passed on to it (M/s APIL) by NIIL. Learned counsel for the respondent next contended that profits made by it during the period 1974 to 1984 does not indicate passing on of the duty burden to its dealers. It was contended that profit or loss is not the determinative factor in order to ascertain whether the disputed additional duty is passed on by the respondent to its dealers. In the circumstances, it was submitted that on the said material and evidence and having regard to the specific findings the only possible conclusion was that the respondent, M/s APIL had not passed on the disputed duty burden to its dealers/customers.

At the outset it may be pointed out that in para 104 there is nothing to suggest that payment of duty under protest does not attract bar of unjust enrichment. Para 104 only states that if refund arises upon finalization of provisional assessment, section 11B will not apply.

In the present case, reliance was placed by the respondent M/s APIL on the above para in support of its contention that payment of duty under protest and payment of duty under provisional assessment are both "on account" payments under the Act. We do not find any merit in this argument. As discussed, there is a basic difference between duty paid under protest and duty paid under rule 9B. The duty paid under protest falls under section 11B whereas duty paid under provisional assessment falls under rule 9B. That section 11B deals with 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 spheres and, consequently, in para 104 of the said judgment, it has been held that in cases where duty is paid under rule 9B and refund arises on adjustment under rule 9B(5), then such refund will not be governed by section 11B. In the said para, it has been clarified that if an independent refund claim is made after adjustment on final assessment under rule 9B(5), agitating the same issues, then such claim would attract section 11B. This is because when the assessee makes an independent refund claim after final orders under rule 9B(5), such application represents a claim for refund and, it would not come in the category of making of refund and therefore, the bar of unjust enrichment would apply. Hence, there is no merit in the contention of the respondent M/s APIL that although in this case duty was paid under protest, there was no difference between such payment and duty paid under provisional assessment under the said Act. This argument was obviously advanced because unless the two payments are equated as contended, the respondent M/s APIL was required to comply with section 11B. In this matter, duty has been paid under protest. It is the case of the respondent M/s APIL that since such payment was similar to payment under rule 9B, the respondent M/s APIL was not required to comply with section 11B. In the light of the discussion hereinabove, we hold that the respondent was bound to comply with section 11B. Lastly, in any event, the application dated 11.2.1997 fell in the category of refund claim being made after finalization of assessment of NIIL and, therefore, section 11B had to be complied with in terms of para 104 of the above judgment in the case of Mafatlal Industries Ltd. (supra). For above stated reasons, since there was failure to comply with section 11B, the respondent was not entitled to refund.

The point which still remains to be decided is  whether the respondent herein was entitled to refund without complying with section 11B of the Act on the ground that it had stepped into the shoes of NIIL (manufacturer) which had paid the duty under protest. It was argued on behalf of the respondent that NIIL had paid the excise duty under protest pending final assessment, which was ultimately decided in favour of NIIL and since NIIL had sold the product to the respondent herein, the respondent was entitled to the benefit of the second proviso to section 11B(1) which inter alia stated that limitation of six months shall not apply where duty had been paid under protest. We do not find any merit in this argument. In the case of Bombay Tyre International Ltd. (supra), it has been held by this Court that section 3 of the said Act is a charging section whereas section 4 is a computation section which covers assessment and collection of excise duty. That the basis of assessment under section 4 was the real value of excisable goods which included manufacturing cost and manufacturing profit but excluded selling cost and selling profit. That the price charged by the manufacturer for sale of the goods represented the real value of the goods for assessment of excise duty. In the case of Atic Industries Ltd. v. H. H. Dave, Asstt. Collector of Central Excise reported in [AIR 1975 SC 960], this Court has held that the resale price charged by a wholesale dealer who buys goods from the manufacturer cannot be included in the real value of excisable goods in terms of section 4 of the said Act. Therefore, it is clear that the basis on which a manufacturer claims refund is different from the basis on which a buyer claims refund. The cost of purchase to the buyer consists of purchase price including taxes and duties payable on the date of purchase (other than the refund which is subsequently recoverable by the buyer from the Department). Consequently, it is not open to the buyer to include the refund amount in the cost of purchase on the date when he buys the goods as the right to refund accrues to him at a date after completion of the purchase depending upon his success in the assessment. Lastly, as stated above, section 11B dealt with claim for refund of duty. It did not deal with making of refund. Therefore, section 11B(3) stated that no refund shall be made except in terms of section 11B(2). Section 11B(2)(e) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of section 11B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer (distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of "on account" payment made under protest by the manufacturer without complying with section 11B of the Act.

As stated above, para 104 of the judgment in the case Mafatlal Industries Ltd. (supra) states that if refund arises upon finalization 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 & 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 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 finalization 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 finalization 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 finalization of provisional assessment did not attract the bar of unjust enrichment.