TMI Blog2008 (3) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Consumer Welfare Fund, on the ground that the appellants have not been able to show that the same was not realized from the customers. On the other hand, it is the appellant s contention that the provisions of unjust enrichment will not apply in as much as sub-section 18(5) was introduced in the Customs Act w.e.f. 13-7-06 and the finalization of provisional assessment took in January, 2002 i.e. much before amendment to Section 18 of the Act. 2. The learned Advocate Shri P.M. Dave has placed reliance upon the various decisions laying down that bar of unjust enrichment is not applicable to refund consequent upon finalization of provisional assessment. Reliance stand placed upon Hon ble Supreme Court decision in case of CCE, Mumbai v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visional assessment is governed by limitation prescribed under Section 27 of Customs Act, 1962 and the Customs authority are under no obligation to refund the amount due under Section 18(2) ibid without application of Section 27. 5. In any case, I find that the refund has not been given to the appellant prior to introduction of sub-section 18(5) and as such it can be safely concluded that the same was pending. The order by the Assistant Commissioner was passed on 19-7-06, when the said sub-section was in the statute book and would be applicable to all the pending refunds. The Commissioner (Appeals) has discussed the above issue very effectively in Para 4.1 of his order, which is reproduced below : 4.1 For arriving at the interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on 19-7-06. Hence, the ACC was bound by the amendment of the statute and had to statutorily examine whether the importer had passed the incidence of the subject duty on to any other person, before deciding the question. 6. As such, I do not find any merit in the appellant s claim of non-applicability of the provision of unjust enrichment. 7. As regards the factual position as to whether the said duty stand paid by the appellant s customers or not, they have not been able to produce any evidence to the contrary. The appellant s only contention is that since they have sold the goods in question at loss, it is to be presumed that the said duty burden was not passed on to their buyers. The said plea stand discussed by the appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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