TMI Blog2002 (2) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of automotive rear axle/spares and filed Bill of Entry dated 17-8-96; that they were directed to clear the goods provisionally on furnishing of the security calculated at 5% of the value which they did; that subsequently, the enquiry against them was dropped by the Department and Bill of Entry was finally assessed on 14-8-1998, that they, therefore, filed the Refund claim for refund of Rs. 18,31,806/- deposited as security on 17-8-98; that the Assistant Commissioner, under Adjudication Order dated 26-10-1998 while sanctioning the amount of Rs. 18,31,806/- ordered the credit of the same in the Consumer Welfare Fund; that the Commissioner (Appeals) under Order dated 22-4-99 set aside the Adjudication Order by holding that the amount was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded and it is not the duty under the Customs Act and, accordingly, the provisions of Section 27 of the Customs Act shall not apply to such refund of security. He relied upon the observation of the Apex Court in the case of Mafatlal Industries Ltd. v. U.O.I., - 1997 (89) E.L.T 247 (S.C.) according to which refund of security was excluded from the principle of unjust enrichment. Reliance was also placed on the decision in the case of Oswal Agro Mills Ltd. v. Assistant Collector - 1994 (70) E.L.T. 48 (S.C.) wherein it was held that the furnishing of a bank guarantee for all or part of the disputed excise duty is not equivalent to payment of the amount of excise duty; the bank guarantee is security for the Revenue and Section 11B of the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bill of Entry was assessed to duty by adding 5%; that the importer had passed on the incidence of duty to their customers inasmuch as they had shown the amount incurred on the purchase of the machinery in question including the 5% loaded by the Department towards the amount of expenditure and they had also claimed depreciation on the same. He also submitted that no refund is thus available to the Importer; that the Commissioner (Appeals) has erred in allowing the refund of Rs. 11,04,579/- when it was established that the amount of duty deposit was taken into the costing of the machine and thus formed part of the expenditure of the Appellant; that it has been held in the impugned order that the incidence of duty had been passed on to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported by the Appellants therein were assessed provisionally because of Special Valuation Branch loading, ranging between 1% to 5%. The valuation was decided by accepting the value declared by the Appellants. The Tribunal held, following the decision in the case of Kinetic Motor Co. Ltd. v. CCE, Indore - [2001 (136) E.L.T. 85 (T) = 2000 (40) RLT 450], that the provisions of unjust enrichment are not attracted in cases of finalisation of assessment. This decision applies on all fours to the facts of the present matter since the imported goods were cleared on provisional assessment by loading duty by 5% and the value as declared by the importers had been accepted by the Customs House. The Tribunal again in the case of Swaraj Mazda Ltd., sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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