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2015 (6) TMI 616 - CESTAT CHENNAI

2015 (6) TMI 616 - CESTAT CHENNAI - TMI - Denial of refund claim - whether the refund arising out of finalization of provisional assessment on the imports of the appellants which was sanctioned and credited to the Consumer Welfare Fund on the ground of unjust enrichment is applicable or not - Held that:- finalization of provisional assessment was completed in the year 1999 much before the insertion of sub-section (5) to Section 18 of Customs Act. The decisions relied by the learned AR for Revenu .....

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ussa Overseas and Property Pvt. Ltd. (2003 (11) TMI 590 - SUPREME COURT). - unjust enrichment clause shall not apply for finalization of the provisional assessment for the cases prior to 13.7.2006. - appellants are eligible for refund of CVD and BCD amounting to ₹ 7,75,157/- and is not covered by unjust enrichment clause as the period involved is prior to 13.7.2006 - Decided in favour of assessee. - Appeal No. C/318/2005 - Dated:- 26-3-2015 - R Periasami, Member (T),J. For the Appellant : .....

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ization of the provisional assessment, the appellants were eligible for refund of excess CVD and BCD paid amounting to ₹ 7,75,157/-. The adjudicating authority vide order dated 30.7.2004 sanctioned the amount but credited the same to the Consumer Welfare Fund on the ground that the appellants have not crossed the bar of unjust enrichment. On appeal, the lower appellate authority rejected the appeal. Hence the present appeal. 3. Heard both sides and perused the records. 4. The learned couns .....

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wn case reported in 2012 (282) ELT 368 (Del.). 5. On the other hand, the learned AR for Revenue reiterated the findings of the authorities below. He submits that Section 18 is applicable as the refund was sanctioned in 2004 and unjust enrichment has been rightly invoked. He relied on the following decisions:- Bussa Overseas and Properties Pvt. Ltd. Vs. Union of India - 2004 (164) ELT A177 (SC) - Sahakari Khand Udyog Mandal Ltd. Vs. CCE - 2005 (181) ELT 328 (SC) - Commissioner of Customs Vs. Scie .....

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of Customs Act, 1962. Sub-section (3), (4) and (5) of Section 18 was inserted with effect from 13.7.2006. Sub-section (5)(a) of Section 18 is reproduced below:- (5) The amount of duty refundable under sub-section (2) and the interest under sub-section (4), if any, shall, instead of being credited to the Fund, be paid to the importer or the exporter, as the case may be, if such amount is relatable to (a) the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as t .....

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licable to the present case as the case of Sahakari Khand Udyog Mandal Ltd. (supra) deals with refund arising out of excess excise duty paid. Similarly, the case of Scientific Instruments Co. Ltd. (supra) relates to finalization of provisional assessment completed on 16.7.2009 after the amendment of Section 18 of the Customs Act. The Hon'ble High Court of Delhi in the appellant's own case has considered the case of Bussa Overseas and Property Pvt. Ltd. (supra). The relevant paragraphs of .....

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neshwar-I v. Paradeep Phosphates Ltd. - 2010 (252) E.L.T. 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 view of the said Explanation, the respondent assessee was required to move an application under Section 27 of the Act and accordingly, the conditions stipulated in sub-section (2) of the Act are applicable. We may now notice here that the two situations, which .....

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e to the Assessee. This is explained with the following illustration: Duty paid provisionally ₹ 100 Duty finally assessed ₹ 60 Duty to be refunded ₹ 40 In this case Explanation II will have no application since no claim for refund is made and ₹ 40 is to be refunded since the same is admittedly due. Duty paid provisionally ₹ 100 Duty finally assessed ₹ 70 According to Assessee correct duty payable ₹ 60 In this case, admitted amount of refund of ₹ 30 .....

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gets reduced on final assessment. The assessee, therefore, becomes entitled to refund which is payable in terms of Rule 9B of the Excise Act [(sic) Rules], 1944 or Section 18 of the Act. For refund on this account, no application is required to be filed under Section 27 of the Act and therefore, sub-section (2) is not applicable. In the second situation, the assessee becomes entitled to additional refund on account of appellate orders or orders passed by a court. In this situation, the assessee .....

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