TMI Blog2012 (11) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... rise for consideration as recorded by the appellate authority is as under : Assessee M/s. Essar Steel Ltd., Surat 394 270 (hereinafter referred as the assessee ) has filed this appeal against Order-in-Original No. SRT/Cus/R/27/2005 dated 14-11-2005. The assessee filed Bill of Entry No. 535/94-95 dated 20-1-1995 for the clearance of 227941 MTs of Lime Stone imported per MV Pearl of Dubai. They sought the clearance against the split value based advance Licence No. P/L/3498886 dated 16-4-1994 (Main Licence No. P/L/1524110 dated 29-10-1993) issued to M/s. Vishakhapattnam Steel Plant, Vizag and made transferable after fulfilment of export obligation and transferred to M/s. Essar Gujarat Ltd. As the matter of genuineness of the licence was being investigated by the DRl, New Delhi, the clearance against the advance licence was not allowed to the importer. The Bill of Entry was assessed provisionally on 18-5-1995 on merit and the assessee paid the entire duty. The original DEEC Licence was returned to the assessee. 2. Subsequently, CEGAT, Mumbai vide Order No. C-I/3676-3714/01/WZB dated 22-11-2001 held that the licence issued to M/s. Vishakhapattnam Steel Plant is valid. On issuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than the cost incurred in producing the same and as per the accounting practices, the said losses have been capitalized. Thus, the losses are part of fixed assets. In case they get the refund, the value of fixed assets will be reduced by that amount. 4. The adjudicating authority by his Order-in-Original held that doctrine of unjust enrichment will be applicable to all the cases of refunds irrespective of their origin relying upon the judgment of Hon ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. [2005 (181) E.L.T. 328 (S.C.)] and rejected the refund application filed by the assessee. Aggrieved by such an order, the assessee-respondent preferred an appeal before the first appellate authority who vide the impugned order has allowed the appeal and set aside the Order-in-Original, effectively granting the refund to the assessee. 5. Learned SDR appearing on behalf of the appellant-Revenue would submit as under : 1. The first appellate authority has erred to appreciate the facts that even if it is presumed that the goods have been sold at a lesser price than the cost of production, even in that case also some of the duty element might have been passed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of letter was filed on 9-2-2005. It is his submission that the provisions of Section 27 of the Customs Act, 1962 will not be applicable in this case as the bill of entry was provisionally assessed by the authorities and subsequently finalized. It is his submission that the provisional assessment was done by directing the respondent to deposit the amount of the duty by denying the assessee the benefit of DEEC advance licence debits. It is his submission that once the bill of entry which was provisionally assessed, has been finalized by allowing them to debit the amount in the DEEC advance licence, the amount paid by the assessee at the time of provisional assessment, needs to be refunded which will not attract the provisions of unjust enrichment as the provisions of unjust enrichment on provisional assessments under Section 18 of Customs Act was brought into statute from 13-7-2006. It is his submission that the judgment of the Hon ble Apex Court in the case of Allied Photographic India Ltd. - 2004 (166) E.L.T. 3 (S.C.) and the judgment of the Hon ble High Court of Gujarat in the case of Commissioner of Customs v. Hindalco Industries Ltd. - 2008 (231) E.L.T. 36 (Guj.) read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read into provisions of Section 18 prior to the amendment of Section 18 w.e.f. 13-7-2006. We with respect reproduce the relevant paragraphs. 19. This can be considered from a slightly different angle. While introducing the Taxation Laws (Amendment) Bill, 2005 (Bill No. 74 of 2005) the Notes on Clauses in relation to Section 18 of the Act indicate that sub-sections (3), (4) and (5) to Section 18 of the Act, have been inserted to provide for a mechanism to regularise the payments of duty short levied and interest thereon and duties that are to be refunded on finalization of provisional assessment and in this context in the report of the Standing Committee on Finance it has specifically been noted that this amendment became necessary because Section 18 of the Act which provides for provisional assessment of duty presently (i.e. upto 12-7-2006) does not provide for various issues arising from the finalization of provisional assessment. Thus it becomes apparent that the amendment in question is substantive in nature when one finds that various provisions have been inserted which were not forming part of the original Section 18 of the Act as it stood upto 12-7-2006. It is not possi ..... 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