TMI Blog2011 (9) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... case are that the appellant had filed a refund claim of differential amount of Customs duty arising out of finalization of provisional assessment of 19 bills of entry involving import of Liquified Natural Gas (LNG) falling under CTSH 27111100 at C.H. Dahej. After initial scrutiny, deficiency memos were issued to the appellant for compliance as to certain original documents and for submission of evidences showing that the doctrine of unjust enrichment was not attracted to the subject refund claim. The appellant was, thereafter, called upon to show cause vide Show Cause Notice F.No.VIII/20-15 to 33/CUS/R/SRT/2009, dt.8.5.09, as to why their refund claims should not be rejected on the ground of unjust enrichment. After examining the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire findings as recorded in Para 5.4. It is his submission that the findings of ld. Commissioner (Appeals) are contrary to the judgment of Hon'ble High Court of Mumbai in the case of Board of Trustees of the Port of Mormugao Vs UoI - 1993 (68) ELT 39 (Bom). He would submit that in the appellant's own case, the Hon'ble High Court has held that refund in respect of short landed goods arises and will not be covered by the provisions of Section 27 of Customs Act, 1962. He would also draw our attention to the judgment of Tribunal in the case of Godrej Boyce Mfg.Co. Vs Collr.of Customs 2001 (134) ELT 429, Textool Company Ltd Vs. CC Chennai 1999 (111) ELT 826, CC (Import) Nhava Sheva Vs KTR Coupling Pvt.Ltd. 2008 (226) ELT 236 and submit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962, when the duty leviable on the imported goods cleared for home consumption, the amount paid shall be adjusted against the duty finally assessed and if the amounts so paid falls short of, or is in excess of the duty finally assessed, the importer of the goods shall pay the deficiency of be entitled to a refund, as the case may be. In this case, the amount of duty paid against the duty finally assessed is in excess of the duty finally assessed, therefore, the claimant are entitled to the refund of Customs duty paid in excess i.e. amounting to Rs.22820806/- as detailed above. I hold that the refund claims filed by the claimant are admissible to them." 8. This factual position remains un-contraverted by the Revenue. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding upon us. Accordingly, we hold that the refund claim is not barred by limitation and the refund would have to be paid to the appellant. 6. The departmental representative then raises the? question that it would have to be shown that before the refund is paid to the appellant, the requirement contained in sub-section (2) of Section 27 of the Act that the incidence of duty has not been passed on would have to be satisfied. The claim arose because the goods in respect of which the duty was paid never arrived in India. In that situation, there could be no question of incidence of duty being passed on. The importer could not have sold the goods or used them for any other purpose, there being nothing to sell or use." 9. Yet in another ..... X X X X Extracts X X X X X X X X Extracts X X X X
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