TMI Blog2006 (4) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... Provisional assessment was resorted to. The respondents paid CVD at the rate of 16%. Subsequently, they filed refund claim dated 25-5-2001 claiming refund of CVD duty along with proportionate SAD to the tune of Rs. 42,19,742/-. A Show Cause Notice was issued for rejection of the refund claim on grounds of unjust enrichment. The Bills of Entry were finalized on 5-12-2001 considering the respondent s claim for exemption from CVD. However, an order was passed by the original authority rejecting the refund claim on the grounds of unjust enrichment. The lower authority relied on the Solar Pesticides case decided by the Apex Court wherein it was held that unjust enrichment would be applicable to cases of captive consumption. The contention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsumer Welfare Fund and the respondent is not eligible for the refund. (v) The Commissioner (Appeals) has not taken into consideration the ratio of Priya Blue case decided by the Tribunal wherein it is held that in the absence of challenge of assessment in the Bill of Entry by way of appeal, no refund claim is admissible. The Apex Court upheld the decision of the Tribunal in the Priya Blue case holding that a claim for refund under Customs, contrary to assessment order is not maintainable without the order of assessment having been modified in appeal or reviewed under Section 28 of the Customs Act, 1962. 3. Shri Ganesh Havanur, the learned SDR appeared for the Revenue and he reiterated the Grounds of Appeal. Shri G.P. Sastry, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s belated hour. (iv) On merits, the case is in favour of the respondents. The collection of duty at the time of importation itself was unnecessary but the payment had to be made to ensure smooth and uninterrupted release of imported cargo. (v) In view of the settled case law on the subject, the Doctrine of Unjust Enrichment would not be applicable to refund arising out of finalization of provisional assessments. (vi) Fertilizer being a controlled commodity of the Government, the price, production and distribution are under the direct control of the Ministry. The price of the fertilizer remaining the same, both before and after the import, the fact that the incidence of duty is not even indirectly passed on to any other person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjust enrichment would not be applicable for refunds arising consequent to finalisation of provisional assessment. In the year 1999, there was an amendment to Rule 9B(5) by way of introduction of proviso to the effect that unjust enrichment aspect has to be seen in respect of refunds arising consequent to finalisation of provisional assessment. As far as Customs Act is concerned, there was no lacuna and we want to make it clear that at all times, ever since the introduction of the concept of unjust enrichment, all cases of refund should be scrutinized for unjust enrichment. In fact, it is incumbent on the person claiming refund to show that he has not passed on the duty burden to the purchaser. There is a statutory presumption that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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