TMI Blog2007 (5) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... AL. Tribunal disposing such appeal by order dated 8-1-96 remanded the matter for de novo adjudication and directed as follows : 4. We have carefully considered the pleas advanced from both sides. While we agree that the method adopted by the original authority in arriving at the price on the basis of 2% depreciation from the price of somewhat similar new machine in 1994-95, is not correct as held by the appellate authority, we also find sufficient force in the plea of the learned JDR, Shri S. N. Ghosh that the book-value of the machine cannot be zero as shown against some of the machines in the Chartered Engineer s Certificates. It, therefore, appears to be reasonable in the facts and circumstances of the case that the adjudicating authority be given an opportunity to look into the book-value of the machines on the basis of the evidence to be supplied by the respondents herein, as to how the supplier of the machine has arrived at the book-value of the various machines. If the basis of arriving at the book-value is found to be arbitrary then only in such a case, the invoice price may be required to be interfered with by the adjudicating authority. In no other case, the invoice pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly applicable to the duty deposited in respect of the impugned Bills of Entry importing capital goods. 1.4 The order of rejection of refund dated 2-7-2002 was subject matter of appeal before the ld. Commissioner in Order-in-Appeal No. Kol/Cus/14/ CKP/2003 dated 30-6-2003 who on hearing the matter, confirmed the order of rejection. Hence, such dispute is before us in the present appeal. 1.5 While confirming order dated 2-7-02 passed by the ld. Adjudicating Authority denying above refund, it was observed by the ld. Commissioner (Appeals) that reassessment arose out of decision/Order-in-Aappeal (para 5 page 4) cannot be considered as finalization of provisional assessment by distortion of provisions of law (at page 3 in para 4). He also observed that final assessment made by order dated 23-2-95, determining Customs duty liability of the Appellant in respect of 11 Bills of Entry relating to second-hand machinery imported during August 91 to May 92, (fully more described in refund order dated 10-12-1999 giving rise to the refund) having been disputed in first appeal and such Appeal disposed by Order dated 30-6-95 passed by ld. Commissioner of Customs (Appeals) in Order-in-Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India reported in 1997 (89) E.L.T. 247, (iv) Commr. of Central Excise v. T. V. S. Suzuki Limited reported in 2003 (156) E.L.T. 161, (v) Hindustan Metal Pressing Works v. Commr. of Central Excise reported in 2003 (153) E.L.T. 11 (S.C.) = 2003 (55) RLT 259, (vi) Sinkhai Synthetics Chemicals Pvt. Ltd. v. Commr. of Central Excise reported in 2002 (143) E.L.T. 17, (vii) Alcatal Modi Networks Systems v. Commissioner of Customs being Order dated 13-3-01 of the Hon ble Supreme Court in Civil Appeal No. 4310 of 1999 [2002 (146) E.L.T. A96 (S.C.)], (viii) Eicher Motors Ltd. v. CCE Customs reported in 2002 (53) RLT 108, (ix) Commr. of Customs v. Korin India Ltd. reported in 2002 (141) E.L.T. 360, (x) Oriental Exports v. Commr. of Customs reported in 2001 (127) E.L.T. 578, (xi) G. K. N. Invel Transmissions Ltd. v. Commissioner of Customs reported in 2001 (137) E.L.T. 527 (xii) Kinetic Motors Co. Ltd. v. Commissioner of Central Excise reported in 2001 (136) E.L.T. 85 and CC, Ahmedabad v. Hindalco Industries Ltd. - 2006 (199) E.L.T. 481. 2.3 The ld. Sr. Counsel for the Appellant vehemently argued that there was no question of unjust enrichment when the incidence of duty was not at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional assessment, reassessment and any order of assessment in which the duty assessed is nil. To determine whether an assessment in a particular case is provisional or tentative or final, it is necessary to look at the whole of the documents and it will not be permissible to any competent authority to dissect various parts thereof into water tight compartment as held by the Hon ble High Court of Mumbai in the case of D.N. Kohli, Collector of Central Excise, Bombay v. Krishna Silicate Glass Works and Another - 1983 (12) E.L.T. 216 (Bom.). It should be appreciated that an assessment and provisional assessment of duty under either Central Excise Act, 1944 or Customs Act, 1962 and Rules made thereunder read with relative Finance Act can only be in accordance with the statutory provisions. These are not common law rights. Therefore, provisional assessment under Customs Act, 1962 can only be made in accordance with the provisions of Section 18(1) of the Act. Such a provisional assessment is a statutory matter, and should be dealt within four corner of the law laid down therein. 4.4 An assessment cannot be lebelled as provisional simply on the footing that time would require t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional assessment. This process calls for discharge of legal obligation by each other under law and an order as an outcome of such exercise emerges. Provisional assessment is done pending final assessment and in the course of provisional assessment, the Assessing Authority may direct that the duty leviable may be assessed provisionally subject to furnishing such security as the authority may deem proper for the payment of deficiency, if any, between the duty finally assessed and the duty provisionally assessed. This procedural aspect of mandate of law needs to be followed. 4.6 It was observed by the Hon ble Supreme Court in the case of CCE, Mumbai v. ITC Ltd. - 2006 (203) E.L.T. 532 (S.C.) in para 21 at page 537 of the reported judgment that a provisional assessment is made in terms of Rule 9B of Central Excise Act, 1944, inter alia, that at the instance of the assessee. Such a recouse is resorted to only when the condition laid down therein are satisfied, viz, where the assessee is found to be unable to produce any document or furnish any information necessary for assessment of duty of any excisable goods. In Para 22 of the said judgment, the Hon ble Court held that where a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2004 (166) E.L.T. 3 (S.C.) decided on 18-3-2004 held that assessment means determination of tax liability and entitlement to refund would be known only when duty is finally adjusted (Para 7 of judgment). In Para 11 of the judgment it was held that in Para 104 of Mafatlal Industries Ltd. judgment - 1997 (89) E.L.T. 247 (S.C.) the Hon ble Court stated that if refund arises upon fmalisation of provisional assessment, Section 11B will not apply and any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or 11B, as the case may be. In Para 12 of the judgment in Allied Photographics case (supra) it was held that Section 11B and Rule 9B operate in different spheres and, consequently, in Para 104 of the judgment in Mafatlal case (supra) it was held that in cases where duty is paid under Rule 9B and refund arises on adjustment under Rule 9B(5), then such refund will not be governed by Section 11B. Accordingly, it was held that if an independent refund claim is made after adjustment on final assessment under Rule 9B(5), agitating the same issues, then such claim would attract Section 11B. This is because when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia v. Solar Pesticides Pvt. Ltd. - 2000 (116) E.L.T. 401 (S.C.) that the words incidence of such duty mean the burden of duty. Section 27(1) of the Act talks of the incidence of duty being passed on and not the duty as such being passed on to another person. To put it differently the expression incidence of such duty in relation to its being passed on to another person would take it within its ambit not only the passing of the duty directly to another person but also cases where it is passed on indirectly. This would be a case where the duty paid on raw material is added to the price of the finished goods which are sold in which case the burden or the incidence of the duty on the raw material would stand passed on to the purchaser of the finished product. It would follow from the above that when the whole or part of the duty which is incurred on the import of the raw material is passed on to another person then an application for refund of such duty would not be allowed under Section 27(1) of the Act . 5.2 Stated simply, Unjust enrichment means retention of a benefit by a person that is unjust or inequitable. Unjust enrichment occurs when a person retains money or bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2005 (181) E.L.T. 328 (S.C.) that irrespective of applicability of Section 11B of the Act, the doctrine of unjust enrichment can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss . However, this case was not directly on the point of refund arising on finalisation of provisional assessment. 6.1 With the aforesaid factual back drop and legal position, case of the Appellant in the present appeal may be examined. Firstly, the question arises in this case is whether there was any notice issued to the assessee to make a provisional assessment under Section 18(l) of the Act and whether there was any circumstance compelling such an assessment contemplated by such notice. So also whether there was any order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra). Giving effect to the order of Tribunal, the order dated 26-2-1998 emerged as order of re-adjudication directing finalisation of provisional assessment and reached to its finality without any challenge by Revenue to that order. As a sequel to that, the refund order dated 10-12-99 arose and right of Appellant to refund accrued on that date. Ultimately, the refund arose in terms of order dated 10-12-1999 related to 11 Bills of Entry enumerated in that order pertained to the period 20-8-91 to 29-5-92 and claimed by Appellant on 23-12-1999 is a refund to be made by Authorities suo motu under Section 18 of the Act following judgment of Hon ble Supreme Court in the case of CCE, Mumbai II v. Allied Photographics India Ltd.- 2004 (166) E.L.T. 3 (S.C). And the law relating to refund by Section 18(2) governing the cases of finalized provisional assessments as on that date shall apply following the decision of Hon ble Supreme Court in the case of National Engineering Industries v. CC, Jaipur - 2005 (188) E.L.T. 471 (S.C.). The entire exercise done by Authorities was to finalise provisional assessment. 6.4 The third question arises is whether refund arising by order dated 10-12-1999 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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