TMI Blog2016 (1) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... Alongwith the said certificate also two documents are attached which appear to be copy of the Journal and ledger, both certified by the CA. While a certificate claims that these amounts are shown as amount recoverable from the Customs authorities against duty paid under protest, the Journal and ledger only records details of cheques and duty paid under protest. No where referred in the ledger records that the said amounts are recoverable from government. The Ledger or Journal simply records the entries as Duties Paid under Protest. There is no basis of claim that the same are recoverable from the Customs. No sales invoices or other documents have been produced to original adjudicating authority to substantiate the claim of not passing the burden of duty to the clients. - Appellant / assessee failed to prove its case - Refund not allowed - Decided against the assessee. - Appeal No. C/1028 & 1029/07 - A/85268-85269/16/SMB - Dated:- 7-1-2016 - SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri Prakash Advocate with Shri Sushanth Murthy, Advocate For the Respondent : Shri D.S. Maan, Assistant Commissioner (AR) ORDER Per: Raju The appellants filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court. The Hon'ble Supreme Court vide order dated 18.4.2006 set aside the order of CEGAT with consequential relief. It also held that importer is entitled to benefit of exemption under the Notification No. 150/90-Cus and 204/92-Cus. The refund has arisen as a consequence of the said order of the Hon'ble Supreme Court. 2. The learned Counsel for the appellant argued that the assessment was provisional and the provisions of Section 27 of the Customs Act relating to refund were not applicable to the finalization of provisional assessment under Section 18 of the Customs Act. In support of the said claim, the appellant relied on decision of Hon'ble Supreme Court in case of Commissioner Vs. Allied Photographics India Ltd. - 2004 (166) ELT 3 (SC). In the said decision, Hon'ble Supreme Court has observed as under:- 10. In the light of what is stated above, we now quote herein below Para 104 of the judgment of this Court in the case of Mafatlal Industries Ltd. (supra) :- 104. Rule 9B 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 of the judgment in the case of Mafatlal Industries Ltd. (supra) dealt with refund consequent upon finalisation of provisional assessment. Para 104 does not deal with refund of duty paid under protest. As stated above, there is a difference under the Act between payment of duty under protest on one hand and refund consequent upon finalisation of provisional assessment on the other hand. This distinction is missed out, with respect, by the judgment of this Court in the case of Mafatlal Industries Ltd. (supra). We may also point out that the judgment in the case of Sinkhai Synthetics Chemicals Pvt. Ltd. (supra) is based on the concession made by the Counsel appearing on behalf of the Department. That judgment is, therefore, per incuriam. Learned Counsel for the respondent herein placed reliance on the judgment of this Court in the case of TVS Suzuki Ltd. (supra). In that case, application for refund was filed. This was on completion of final assessment. On 9-7-1996, the Department issued a show cause notice as to why the refund claim should not be rejected for non-compliance of Section 11B. By order dated 17-7-1996, the refund claim was rejected on the ground that it was beyond l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision, in Messrs Needle Industries India Ltd. v. CCE [1998 (101) E.L.T. 286 (T)] has taken the view that the doctrine of unjust enrichment is not applicable to provisional assessment in terms of Section 18 of the Customs Act which is similar to Rule 9B of the Central Excise Rules. A two-Judge Bench of this Court in Commissioner of Central Excise, Mumbai v. Allied Photographics India Ltd. [2004 (163) E.L.T. 401 (S.C.) = 2004 (4) SCC 55], noticing the inconsistency, doubted the correctness of two decisions rendered by three-Judge Bench of this Court in, i.e., (i) Sinkhai Synthetics Chemicals (P) Ltd. v. Commissioner of Central Excise [2002 (9) SCC 416 = 2002 (143) E.L.T. 17] and (ii) Commissioner of Central Excise v. TVS Suzuki Ltd. [2003 (7) SCC 24 = 2003 (156) E.L.T. 161] as contrasted to the Constitution Bench decision in Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.) = 1997 (5) SCC 536]. The three-Judge Bench which considered the correctness of the aforesaid two decisions (of three-Judge Bench) has in Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.) = 2004 (4) SCC 34] held that the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrictions in Section 11A and Section 11B of the Central Excise Act. In other words, after 25-6-1999, even the refunds arising under Rule 9B(5) are governed by the provisions of Section 11B of the Central Excise Act. Thus, in view of the above lacuna in the Central Excise Law, the Apex Court in the case of Mafatlal Industries held that the refund arising under Rule 9B is not subjected to Section 11A or Section 11B of the Central Excise Act. There was such lacuna in the provisions contained under the Customs Act. Therefore, the contention of the Petitioners that in view of the judgment of the Apex Court in the case of Mafatlal Industries (supra), the refund arising under Section 18 of the Customs Act cannot be subjected to the provisions of Section 27 of the Customs Act, cannot be accepted. Since refunds arising under Section 18 of the Customs Act has been expressly subjected to the procedure prescribed in Section 27 of the Customs Act, it is not open to the Petitioners to contend that the Parliament in its wisdom thought it fit not to subject the refunds arising on finalization of provisional assessment within the purview of Section 27 of the Customs Act. 4. I have gone thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No. 159/90-Cus dated 30.3.1990 be denied to the goods imported against export of flavored Shivalik Menta Base, as indicated in the annexure to the show-cause notice. An amount of duty of ₹ 97,61,183/- be recovered forthwith from M/s Jindal Dye Intermediate Ltd. in respect of the said goods and the assessments finalized. This order was appealed against by the appellants. Consequent to the appeal to higher forums the refund arose. In view of the observation of Hon SC such cases would be governed by the Section 11 B and therefore need to be tested for the Unjust Enrichment. 4.2 Taxes and duties paid under protest do not automatically become amounts recoverable from the government. Taxes and duties paid under protest are treated differently in law. It has been held by Hon Supreme Court that the refunds of the duty paid under protest are to be tested under provisions of Section 11B, including those for the Unjust Enrichment. Hon'ble Supreme Court in case of Commissioner Vs. Allied Photographics India Ltd. - 2004 (166) ELT 3 (SC). In the said decision, Hon'ble Supreme Court has observed as under:- 14. As stated above, Para 104 of the judgment in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals). Before this Court, the Department conceded rightly that in view of Para 104 of the judgment of this Court in Mafatlal Industries Ltd. (supra), bar of unjust enrichment was not applicable in cases of refund consequent upon adjustment under Rule 9B(5). The judgment of this Court in the case of TVS Suzuki Ltd. (supra), therefore, supports the view which we have taken herein above that refund consequent upon finalisation of provisional assessment did not attract the bar of unjust enrichment. In the case of Commissioner Vs. Allied Photographics India Ltd.(Supra), the Hon'ble Supreme Court has differentiated between the duty paid provisionally and duty paid under protest . In this decision the Hon Supreme Court has held it s decision in the case of Sinkhai Synthetics Chemicals Pvt. Ltd. (2002 (143) E.L.T. 17 (S.C.)) per incuriam. In the case of Sinkhai Synthetics Chemicals Pvt. Ltd. (supra) Hon Court had held that bar of Unjust Enrichment will not apply in respect of duties paid under protest. Since it has been held per incuriam the bar of Unjust Enrichment would apply to duties paid under protest. Since in the instant case the duties have been paid under pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42,75,206/- 3015 07.02.1997 15,39,073/- 18035 We further certify that Jindal Drugs Ltd. has not recovered/passed the burden this payment to any of its customers or to any other party. An extract of the account is enclosed herewith. Alongwith the said certificate also two documents are attached which appear to be copy of the Journal and ledger, both certified by the CA. While a certificate claims that these amounts are shown as amount recoverable from the Customs authorities against duty paid under protest, the Journal and ledger only records details of cheques and duty paid under protest. No where referred in the ledger records that the said amounts are recoverable from government. The Ledger or Journal simply records the entries as Duties Paid under Protest. There is no basis of claim that the same are recoverable from the Customs. No sales invoices or other documents have been produced to original adjudicating authority to substantiate the claim of not passing the burden of duty to the clients. They have produced copies of two document from earnest healthcare limited, clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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