TMI Blog2015 (4) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... bar of unjust enrichment is applicable. Bar of unjust enrichment is applicable to the refund of revenue deposit also by virtue of subsection 5 of Section 18 of the Customs Act, 1962 after 12/7/2006 - unjust enrichment is applicable in the present case. However, on going through a copy of balance sheet, it appears that an amount of ₹ 13,42,143/- is shown under head of 'loan and advances'. This needs to be verified with other account ledgers, etc. for the period from date of deposit till disposal of refund. Therefore, I remand the matter to original adjudicating authority to decide the refund claim a fresh after ascertaining the factual position that the incidence of amount of refund has not been passed on to any other person - Decided in favour of assessee. - Appeal No. C/86029/14-MUM - - - Dated:- 17-12-2014 - Ramesh Nair, Member (J),J. For the Appellant : Ms Lakshmi Menon, Adv. For the Respondent : Shri M S Reddy, Dy. Commissioner (AR) ORDER Per: Ramesh Nair: This appeal is directed against Order-in-Appeal No. 1380 (CRC-I)/2013(JNCH)/IMP-1117 dtd. 19/12/2013 passed by the Commissioner of Customs (Appeals), Mumbai-II JNCH, Nhava Sheva. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 389 (Tri-Mumbai)] - IDMC Ltd. Vs. CC, Mumbai - II [2007 (213) E.L.T. 281 (Tri-Bang)] - Commr. of Cus. Bangalore Vs. Ecomaster (I) Pvt. Ltd. She submits that in all the above judgments it has been consistently held that the bar of unjust enrichment in the case of Revenue deposit is inapplicable because the revenue deposit is not custom duty. Ld Counsel draws my attention to the copy of the balance sheet as on 31 March 2011, wherein an amount of ₹ 13,42,143/- is shown under the subhead as 'balance with custom authority' under main head of 'loan and advances'. 3. On the other hand, Shri. M.S. Reddy, Ld. Dy. Commissioner (A.R.) appearing for the Revenue reiterates the findings of the impugned order and submits that refund of any amount irrespective of duty or otherwise, test of unjust enrichment has to be passed on. He submits that in the present case refund is arising in respect of Revenue deposit on finalization of assessment. The refund is governed by Section 18 sub-section (5) of Customs Act, 1962. It is his submission that in section 18, sub-section 5 was inserted in the year 2006, which is specifically provides that refund made consequence to the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents have not been produced or information has not been furnished and the proper officer deems it necessary to make further enquiry, the proper officer may direct that the duty leviable on such goods be assessed provisionally if the importer or the exporter, as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty as may be finally assessed and the duty provisionally assessed. ; (2) When the duty leviable on such goods is assessed finally or re-assessed by the proper officer in accordance with the provisions of this Act, then - (a) in the case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of, or is in excess of the duty finally assessed, the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed or re- first day of the month in which the duty is provisionally assessed till the date of payment thereof. (4) Subject the sub-ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates 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 12.7.2006 and subsequent to the amendment i.e. with effect from 13.7.2006 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 (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 regular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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