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2016 (1) TMI 877 - CESTAT MUMBAI

2016 (1) TMI 877 - CESTAT MUMBAI - TMI - Claim of Refund of duty paid after finalization of provisional assessment - unjust enrichment - import of Automatic Exhaust Emission Analysis System - claim of benefit of Notification 243/78-Cus for basic duty and additional duty and Notification 23/91-Cus and Notification 70/90-CE for benefit of auxiliary duty. - Held that:- the doctrine of unjust enrichment will not be applicable as the present refund claim relates to the period prior to amendment in Se .....

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he brief facts of the case are that Bajaj Auto Ltd. had imported Automatic Exhaust Emission Analysis System and filed bill of entry no. 4660/18.09.91 seeking classification of the goods under CTH 902710 along with benefit of Notification 243/78-Cus for basic duty and additional duty and Notification 23/91-Cus and Notification 70/90-CE for benefit of auxiliary duty. The benefit of these Notifications were denied to them by the original authority against which respondent filed appeal to the Commis .....

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s. Accordingly, refund sanctioned was credited to the Consumer Welfare Fund. Against the Order-in-Original, appeal was filed before the Commissioner (Appeals), who vide order dated 17.2.2004 set aside the Order-in-Original dated 22.08.2003 and held that the doctrine of unjust enrichment will not be applicable and the order of Adjudicating Authority to credit the amount of refund to the Consumer Welfare Fund could not be sustained. Now the revenue is before us by way of this appeal. 3. The ld. AR .....

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High Court of Bombay in the case of Bussa Overseas & Properties P. Ltd. 2003 (158) ELT 135 in support of their contention that any refund due consequent to finalisation of provisional assessment is also governed of the unjust enrichment clause. He also submitted that SLP filed against the above judgment was summarily dismissed by the Hon'ble Supreme Court. He also cited the following case laws in support of his contention: Sahakari Khand Udyog Mandal Ltd. vs. CCE 2005 (181) ELT 328 (SC) .....

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ment. In support of his submission, he cited the following judgements:- Oriental Exports vs. CC 2001 (127) ELT 578 (Tri-Del) A.P. Gas Power Corp.Ltd. 2008 (224) ELT 469 (Tri-Bang) CC vs. Tulsidas Ramjibhai 2008 (223) ELT 489 (Tri-Ahmd) CC vs. Hindalco Inds. ltd. 2008 (231) ELT 36 (Guj) Hindustan Petroleum Corporation Ltd. vs. CC 2009 (245) ELT 268 (Tri-Ahmd) Bhikkamal Chotelal vs. CC 2009 (245) ELT 268 (Tri-Ahmd) CCE vs. Paradeep Phosphates Ltd. 2010 (252) ELT 502 (Ori) CC vs. Hindalco Inds. Ltd .....

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f the Customs Act, 1962. He also submitted that the Revenue filed appeal before the Supreme Court of India and the Supreme Court while dismissing the appeal has passed the following order: These appeals have been filed by the Revenue. The Tribunal, in the impugned order, following its earlier 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 .....

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sioner 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 judgment in Sin .....

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4 (166) E.L.T. 3 (S.C.) = 2004 (4) SCC 34]. In view of this, the appeals are dismissed and the order passed by the Tribunal is affirmed. No costs. [Commissioner v. Oriental Exports - 2006 (200) E.L.T. A138 (S.C.)] It was further pointed out that in the present case imports were prior to amendment of Section 18 and therefore in view of the amendment with effect from 14.07.2006 it is very clear that the provisions of Section 27 of the Act could not be read into the provisions of Section 18 of the .....

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ection 18 as it stood during the relevant period and the assessment finalised by the authorities subsequent to 14.07.2006 and any refund arising out of such assessment will be governed by the provisions with effect from 14.07.2006. The ld. counsel also submitted that the decision of the Hon'ble High Court of Bombay in the case of Bussa Overseas & Properties P. Ltd. (supra) has been rendered prior to the amendment of Section 18 of the Customs Act, 1962. The decision of the Tribunal in the .....

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rendered by Mumbai High Court cannot be considered to be correct exposition of law, more particularly when the judgment in case of Allied Photographic India Ltd. (supra) which has been rendered subsequently was not considered. It is equally well settled that mere rejection of a petition for Special Leave to Appeal cannot be treated as authoritative pronouncement of law by the Apex Court and therefore reliance placed by the revenue on the note appearing in 2004 (164) E.L.T. A177 cannot assist the .....

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