9911796707
TMI Blog2008 (3) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... h has been credited to the Consumer Welfare Fund. While passing the said order, the learned Tribunal came to a finding, that the respondent M/s. Paradeep Phosphates Limited cannot be said to be guilty of 'unjust enrichment', so they need not be called upon to furnish documents to prove that they have not passed the excise burden to the customers. 2. The material facts of the case which are not much in dispute are as follows: 3. During 1989-90, M/s. Paradeep Phosphates Limited (hereinafter referred to as the 'respondent') imported phosphoric acid from Morocco & Tunisia and, filed Bills of Entry before the customs authorities at Paradeep claiming, inter alia, the concessional rate of duty of 12% in terms of Notification No. 166/76 dated 2-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs (Appeals), the respondent filed further appeal before the said Tribunal, Kolkata. The said appeal was disposed of by an order of the said Tribunal dated 23-4-2004, by setting aside the impugned order and by remanding the matter to the original authority for sanction and payment of the refund amount subject to verification of cost of calculation. In the said order the learned Tribunal held that the respondent has not passed on the duty burden to the buyers nor have they received any subsidy to compensate for the extra duty burden of 3%, inasmuch as, the selling price plus the subsidy received from the Government, was much less than the cost of production, even at the lower rate of duty. The Tribunal, however, held that it is not n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g into account the Doctrine of unjust enrichment, ignoring the amended provisions of Section 18(5) of Customs Act, 1962 which was made effective on 13-7-2006 is correct in law? (B) Whether the CESTAT's order directing to refund the amount to the party ignoring the mandatory provisions of Section 27(2) and 27(3) of the Customs Act, 1962 is correct in law? 7. In respect of the first question, the primary enquiry is whether the amended provision of Section 18(5) of the Customs Act, 1962 (hereinafter called the 'said Act') can be made applicable in the facts of the instant case. Admittedly, the said amendment was made on 13-7-2006. The sunended provisions of Section 18(5) is set out below:- "18(5). The amount of duty refundable under sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18, no obligation is cast on the respondents to prove with documentary evidence that duty has not been passed on to the ultimate customers. Reference in this connection may be made to the judgment of the Supreme Court in the case of Commissioner of C. Ex., Mumbai-II v. Allied Photographics India Ltd., reported in 2004 (166) E.L.T. 3 (S.C.). The said case deals with the provisions of Rule 9B of the Central Excise Rules. It is not in dispute that said Rule 9B is in pari metria with Section 18 of the Customs Act. Dealing with Rule 9B, learned Judges of the Hon'ble Supreme Court observed as follows:- "Rule 9B covered cases of ordering of refund/making of refund, where on satisfaction of the conditions, the concerned officer was duty bound to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es have noted that the decision of the Supreme Court in the case of Commissioner of Central Excise v. TVS Suzuki, 2003 (156) E.L.T. 161 (S.C.) = 2003 (7) SCC 24, it has been held by a three Judge Bench in Oriental Exports that the doctrine of unjust enrichment is not applicable to provisional assessment even after the same is finalized. In TVS Suzuki referred to above, the learned Judges followed the decision of the Constitution Bench in Mafatlal Industries Ltd. and held that the concept of unjust enrichment would not be attracted on finalisation of provisional assessment. (See: 2003 (156) E.L.T. 161 at page 162 of the report). In so far as whether the amended Section 18(5) would be made applicable to the order of refund passed in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
