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2023 (5) TMI 306 - AT - CustomsRefund of excess duty paid under sub-section (1) of Section 18 of Customs Act, 1962 - provision available under sub-section (2) of Section 18 ibid to reject refund of such excess duty paid, or not? - principles of unjust enrichment - certificate issued by the Chartered Accountant satisfy that the burden of duty has not been passed on third party or not - HELD THAT:- The assessment was initially done under sub-section (1) of Section 18 of the Customs Act, 1962. The said provision deals with provisional assessment of duty. Sub-section (2) of Section 18 deals with the actions to be taken on finalization of such provisional assessment. The provisions under sub-section (2) of Section 18 of Customs Act, 1962 provide for 2 situations. One situation is when the provisionally assessed duty is less than the finally assessed duty. That situation is not present in the case on hand. The other provision is about the action to be taken when provisionally assessed duty is higher than finally assessed duty. These provisions are applicable in the present case. The same sub-section (2) has provided that when the provisionally assessed duty is higher than the finally assessed duty then the original authority has two options. One is either to credit such refundable amount to consumer welfare fund when duty burden has not been borne solely by the importer and the other situation is that if it is establish that the importer has not passed on the incidence of such duty then the excess amount is to be refunded to the importer. The order is not in accordance with the provisions of sub-section (2) of Section 18 of Customs Act, 1962. The original authority has, for the reason of unjust enrichment, rejected the refund claim. When excess duty is paid under sub-section (1) of Section 18 of Customs Act, 1962, under sub-section (2) of Section 18 ibid there is no provision for rejection of refund of excess duty collected initially. Matter remanded back to the original authority with a direction to decide the case in accordance with the provisions of Customs Act, 1962. The appeal is allowed by way of remand.
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