TMI Blog2015 (3) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... n hand as they do not have retrospective effect. - Following decision of COMMISSIONER OF CUSTOMS Versus INDIAN OIL CORPORATION [2012 (1) TMI 31 - DELHI HIGH COURT] - Decided in favor of assessee. - C.M.A. No. 961 of 2008, M.P. No. 1 of 2008 - - - Dated:- 6-3-2015 - R. Sudhakar And R. Karuppiah,JJ. For the Appellant : Mr. P. Mahadevan For the Respondents : Mr. B. Satish Sundar for R-1 JUDGMENT (Delivered By R. Sudhakar, J.) Aggrieved by the order of the Tribunal in dismissing the appeal filed by it, the appellant/Revenue is before this Court by filing the present appeal. Though, this Court had initially admitted the appeal as early as on 19.3.08 by framing substantial questions of law, with the consent of the counsel on either side, the same were reframed by this Court on 24.2.15. The reframed substantial questions of law are as hereunder :- i) Whether the Tribunal was right in holding that the 1st respondent is entitled for automatic refund of the Extra Duty Deposit made pending finalisation of the provision assessment without filing an application for refund under Section 27 of the Customs Act, 1962? ii) Whether the Tribunal is right in not consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order is extracted hereunder :- The same analogy would apply to extra duty deposit as has been held in respect of pre-deposit above. In the case of Suvidha Ltd. - Vs UOI reported in 1996 (086) ELT 177 (Bom)), it was held that Refund of pre-deposit made under Section 35F of the Central Excises and Salt Act, 1944, for availing right of appeal Section 11B of the Central Excises and Salt Act can never be applicable to such deposit since it is not a payment of duty but only a pre-deposit for availing the right of appeal ...... The extra duty deposit of 1% has been obtained from the appellants as a precaution to safeguard the interests of revenue. If after final assessment any part of this deposit is found in excess it is liable to be refunded suo motu once the bill of entry is finalised, or atleast on a simple letter request by the importer, without making him run from pillar to post. In my view the term 'extra duty deposit' is a misnomer and has to be understood correctly as nothing that is collected 'extra' or over and above what is allowed under the statute can be termed as a duty. What is meant is that an extra amount has been deposited towards dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, the appellant/Revenue is before this Court by filing the present appeal. 5. Learned standing counsel appearing for the Revenue placed emphasis on para-104 of the order of the Supreme Court in Mafatlal Industries Ltd. Ors. - Vs Union of India (1997 (5) SCC 536) to drive home the point that the provisions of Section 27 of the Customs Act analogous to Section 11B of the Customs Act will be applicable to the facts of the present case. To a specific question raised as to which of the two situations envisaged in para-104 would be applicable, learned counsel fairly conceded that the first situation envisaged in para-104 would be applicable. For better clarity, the said portion of the order is extracted hereunder :- 104. Rule 9-B provides for provisional assessment in situations specified in clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections (3) and (4) relate to liability to pay interest or entitlement to claim interest consequent upon final assessment Order. However, Sub-section (5) is the material amendment which indicates that the Proviso appearing below Sub-section (2) of Section 27 of the Act has now been incorporated as a part of Section 18 of the Act. On a plain reading the distinction between Section 18 as it stood prior to amendment, i.e., upto 12th July, 2006 and subsequent to the amendment, i.e., with effect from 13th July, 2006 becomes apparent. The difference is stark and revealing and it is not possible to agree with the contention of Revenue that such amendment has to be understood as clarificatory in nature. This is more so, when one reads the amendments made in 1998 and the amendment made in Rule 9B of the Central Excise Rules in 1999 considering the pronouncement of the Apex Court as to the distinction between making of a refund and claiming of a refund; the amendment cannot be considered to be retrospective in nature; and cannot be made applicable to pending proceedings. 19. This can be considered from a slightly different angle. While introducing the Taxation Laws (Amendment) Bill, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive pronouncement of law by the Apex Court. 21. Therefore, on both counts, in light of the authorities referred to hereinbefore, and 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 12th July, 2006 and not thereafter. ******** 18. We may notice here that Gujarat High Court in the case of Hindalco Industries (supra) has specifically referred to decision in the case of Allied Photographic India Ltd. (supra) but the said case has not been noticed by the Bombay High Court in the case of Bussa Overseas and Properties Pvt. Ltd. (supra). The decision of the Gujarat High Court in the case of Hindalco Industries Ltd. (supra) has been followed by Orissa High Court in CCE, C. ST, Bhubaneshwar - I Vs. Paradeep Phosphates Ltd. 2010 (252) ELT 502 (Ori.). The said decision also refers to the three earlier judgments of the Supreme Court mentioned above. 19. We have considered Explanation II to Section 27(1) and whether in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjust enrichment is also applicable. Explanation II to Section 27 of the Act deals with the 3rd category of situations. Such situations may occur after the passing of the final assessment, on account of rectification under Section 154 of the Act or because of any other reason, as a result of which the final order suffers an amendment or a change and some amount becomes refundable. As far as Section 18 of the Act is concerned, when an amount becomes refundable after a final order is passed, the same has to be refunded immediately and for this purpose the assessee is not required to move an application under Section 27 and accordingly sub-section (2) to Section 27 would not apply. It is in this situation that the legislature has intervened and has now inserted sub- sections (3), (4) and (5) to Section 18 w.e.f. 13.7.2006. These insertions obviously are not applicable to the case in hand as they do not have retrospective effect. It was so held in TVS Suzuki Ltd. (supra) when similar amendments were made in Rule 9B of the Rules passed under the Central Excise Act w.e.f. 25.6.1999. However, in 1999, the legislature did not make corresponding amendment in Section 18 of the Customs Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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