TMI Blog2011 (1) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... - Held that:- Claim for refund made by the appellant had to be decided according to the law laid down in case of TVS Suzuki Ltd. [2003 (8) TMI 42 - SUPREME COURT OF INDIA] as relying on Mafatlal Industries Ltd. (1996 (12) TMI 50 - SUPREME COURT OF INDIA) , provisions of sub-rule (5) of Rule 9B of the Central Excise Rules were parimateria to the provisions of Section 18 of the Customs Act, 1962 as regards the provisional assessment and finalization thereof. order is not correct and set aside, order is set aside and the appeal allowed with consequential relief, if any. - C/561/2009 - 108/2011-SMB, - Dated:- 4-1-2011 - Shri M.V. Ravindran, J. Shri K. Krishnamurthy, Advocate, for the Appellant. Shri K.S. Chandrasekar, JDR, for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Commissioner (Appeals) in his Orders-in-Appeals No. 01 02/2008 V-II D-Cus., dated. 4-3-2008 allowed the appeals and directed the original authority to consider the aspect of unjust enrichment and pass appropriate orders. The Asst. Commissioner in remand held that the claimant s contention in respect of unjust enrichment, does not have any force as they have not adduced any evidence to rebut the unjust enrichment clause in the present case and ordered for recovery of the refunded amount and to credit the same to the Consumer Welfare Fund. Aggrieved by the order of the adjudicating authority, assessee filed an appeal before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) after following the principles of natural justice an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 161 (S.C.)] will apply in this case. 4. Ld. DR on the other hand would submit that the assessee has to pass the test of unjust enrichment before any amount is refunded to him. He is relying upon the findings of the Commissioner (Appeals). 5. I have considered the submissions made by both sides and perused the records. 6. It is undisputed that the appellant had filed bills of entries on 31-1-2006, which were provisionally assessed on the value of USD 415 PMT of the imported goods. On the very same day, vide Notification No. 7/2005-Cus., (N.T.) dated. 31-1-2006, the tariff value was reduced from USD 415 to USD 412 PMT. The bills of entries were finally assessed on the very same day i.e. 31-1-2006 giving the benefit of the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court held that the expression incidence of such duty in relation to it being passed on to another person would take within its ambit, not only passing of the duty directly to another person but also cases, where it is passed on indirectly. This clearly indicates that even if the imported goods are not meant for sale directly to the customer but for captive consumption by the importers in manufacture of refined oil. The appellant has also failed to produce any concrete evidence to show that the incidence of duty has not been passed to the customer. As per Section 28D of the Customs Act, 1962 Every person who has paid the duty on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75. 9. It can be seen that the said clause will come into effect only from 13-7-2006, while in the case in hand, finalization of bills of entries and filing of refund claim took place before the amendment was incorporated into statute. I find that the ld. Consultant s assertions that the judgment of the Hon ble Supreme Court in the case of TVS Suzuki Ltd. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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