TMI Blog2015 (5) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (2) of Section 27 of the Act was added to Section 18 by way of Sub-section (5). If for a claim under Section 18 of the Act, if an assessee has to put forth a claim under Section 27 of the Act, there was no necessity for the parliament to introduce Sub-section (2) of Section 27 of the Act by way of Sub-Section (5) of Section 18 of the Act. It only demonstrates Sections 18 and 27 are merely exclusive. To claim refund under Section 18 of the Act, the assessee was not expected to invoke Section 27 of the Act. Refund under Section 18 of the Act is independent of refund under Section 27 of the Act. It is for this reason when the Parliament wanted to prevent unjust enrichment, they amended Section 18 of the Act and introduced by way of Sub-section (5) what is contained in Sub-section (2) of Section 27 which includes unjust enrichment. Therefore, it follows prior to the amendment, this doctrine of unjust enrichment was not attracted to refund claim under Section 18 of the Act. - Decided in favour of assessee. - CSTA NOS. 4 OF 2011 AND 12-15 0F 2014 - - - Dated:- 29-1-2015 - N. KUMAR AND B. VEERAPPA, JJ. For The Appellant : Sri B. Lakshmi Kumaran, Advocate For The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protest and for collecting the total value, multiplied the quantity as per Ullage Survey Report with the unit rate intimated by the Canalizing Agent. Freight and insurance is collected by the assessee depending on whether the price quoted by the supplier and the canalizing agent is in FOB, C F or CIF. 4. The assessee filed a detailed statement showing the full particulars of the import consignments in question and requested the Customs Authorities to finalise the assessment under Section 18(2) of the Customs Act, 1962 (for short hereinafter referred to as 'the Act'). In these statements, the assessee had shown the quantities also as per shore tank basis and sought for re-determination of the quantities to be adopted for the purpose of final assessment and to finalize the assessments accordingly. The assessee has been showing that he is paying the customs duty in respect of the import consignments in the books of account based on the methodology of shore tank quantity. The customs duty indicated were at times less and at times more than the bill of lading quantities. The Lower Authority finalized the assessments by adopting the transaction value for the purpose of paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the proper officer deems it necessary to make further enquiry for assessing the duty, the proper officer may direct that the duty leviable on such goods may, pending the production of such documents or furnishing of such information or completion of such test or enquiry, 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 finally assessed and the duty provisionally assessed. (2) When the duty leviable on such goods is assessed finally 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 is in excess of the duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid and collected. 10. Section 27 of the Act provides for claiming of refund of duty. It relates to a claim for refund of duty or interest paid by the assessee or borne by him in a case not falling under the provisional assessment. Sub-section (2) of Section 27 of the Act provides that any excess duty so paid after such determination shall be credited to the Fund. The proviso may be in exception instead of crediting to the Fund, the said amount is payable to the assessee, if the said amount does not fall within any of the categories mentioned in (a) to (f) of the said proviso. One such instance where the assessee was not entitled to refund was where he had already passed on the burden of duty on the customer. That is, if it is refunded to him, it would be a case of unjust enrichment. Such a provision was conspicuously missing in Section 18 of the Act. It is by way of amendment which came into effect from 13-7-2006 the said provisions contained Sub-section (2) of Section 27 of the Act was added to Section 18 by way of Sub-section (5). If for a claim under Section 18 of the Act, if an assessee has to put forth a claim under Section 27 of the Act, there was no necessity for the par ..... 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