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2006 (7) TMI 363 - CESTAT, KOLKATARejection of appellant’s application for refund of excess Customs Duty paid - erroneous computation of assessable value in the Bill of Entry - refund claim of the appellant was rejected by the lower authority on the ground that the assessment on the relevant Bill of Entry had not been appealed against - violation of principle of unjust enrichment - HELD THAT:- The Customs Manual of Instructions has been issued on 11th September, 2001 by the Central Board of Excise & Customs (in short “the Board”). In Chapter 15 of the said Manual it has been clarified that in cases where excess payment of duty has been made due to incorrect assessment by the Customs authorities, the importer must file a claim under Section 27 of the Customs Act for refund of the excess amounts. When it is clear and apparent that duty incidence had not been passed on by the appellant, then they were entitled to refund in accordance with Section 27(2) of the Act. The refund can not be denied on the presumptuous ground that the appellant would pass on the same “later on”. Section 27 of the Act does not provide for denial of refund on any such hypothetical conclusions. The impugned order of the Commissioner (Appeals) is to be set aside and the respondent Customs authorities directed to refund the excess duty of Rs. 94,99,376/- at the earliest - Appeal allowed.
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