TMI Blog2013 (11) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Act. The contention that the Court should not permit a person to derive unjust benefit also does not merit acceptance. The Court can only read the provisions and the statute as they stand, and if necessary, interpret the same but the Court cannot legislate - on interpretation of provisions of Section 18 of the Act, on finalisation of assessment if any excess duty is found to have been paid at the time of provisional assessment Revenue is bound in law to make the refund without any claim being required to be made by an assessee. This would be the position in law upto 12-7-2006 and not thereafter. - Decided in favour of assessee. - Appeal No.C/177, 178/2008-SM - Order No.A/11403-11404/2013 - Dated:- 25-10-2013 - MR. H.K. THA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim arising out of the finalization of provisional assessment even prior to 13.07.2006. 4. Heard both sides and perused the case records. The period involved in the present refund claim is prior to 13.07.2006 when the provisions of Section 27 of Customs Act, 1962 with respect to the refund claims were made applicable to the provisions of Section 18 of Customs Act, 1962. It has been held that by various Courts that unjust enrichment will not be applicable for provisional assessment finalized which has resulted into payment of refund of period prior to 13.07.2006. Hon ble Gujarat High Court in the case of CC Vs. Hindalco Industries Ltd. - 2008 (231) ELT 36 (Guj.), in Paras 18 to 22 of the judgment held as follows:- 18. On a plain r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 possible to stale that the provisions for payment of interest on duty short levied or entitlement to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of provisions of Section 18 of the Act, on finalisation of assessment if any excess duty is found to have been paid at the time of provisional assessment Revenue is bound in law to make the refund without any claim being required to be made by an assessee. This would be the position in law upto 12-7-2006 and not thereafter. 22. In the circumstances, on none of the grounds pleaded can the revenue succeed. Therefore, principles of unjust enrichment found in Section 27 of the Act cannot be read into the provisions of Section 18 of the Act without considering and applying the amendment to Section 18 with effect from 13-7-2006. The Appeal is accordingly dismissed with no order as to costs. 5. In view of the above legal position, the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
