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2014 (12) TMI 530 - MADRAS HIGH COURTDenial of refund claim - Whether the respondent/importer is automatically entitled to refund claim solely on the ground that provision for unjust enrichment was incorporated under Section 18 of the Customs Act, 1962 with effect from 14-7-2006 and in the instant case, the provisional assessment having been finalised prior to the date of insertion of the said provision - Held that:- In the case of provisional assessments made and thereafterwards, it results in a refund, even in the absence of a provision of refund, if an assessee has to claim as refund, under equity, he must prove that there is no unjust enrichment and that the liability had not been passed on to the customer. That being the case, refund is not automatic one merely on the score of provisional assessment being followed by final assessment and unless and until the assessee substantiates the claim backed by the proof that the liability has not been passed on to the customer, such a refund claim may be termed as unjust and the claim cannot be granted as a mere consequence for refund arising on final assessment. When the assessee admits that provisional assessment was followed by a finalisation of assessment being finalised, under Section 27 of the Customs Act - any refund question arising thereon must be subject to proof of not passing on the burden of duty to others. Thus, in the absence of equity i.e., unless the assessee establishes that he has not passed on the burden of duty to another, he would not be entitled to refund as pointed out by the decision in the case of Mafatlal Industries Ltd., (1996 (12) TMI 50 - SUPREME COURT OF INDIA). Even in equity, the assessee is bound to substantiate its claim by showing bona fide that the payment of duty and claim not backed by unjust enrichment and the duty has not passed on to the customer, but it was borne out by the assessee only. - Matter remanded back - Decided in favour of Revenue.
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