TMI Blog2014 (12) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... r claiming of refund of excess paid duty, the appellant was not required to challenge the assessment of bill of entry. The appellant is entitled for refund claim subject to the test of unjust enrichment. - Matter remanded back for verification of unjust enrichment - Decided in favor of assessee. - C/86413/2014-Mum - Final Order No. A/133/2015-WZB/CB - Dated:- 10-12-2014 - Shri P.R. Chandrasekharan, Member (T) and Ramesh Nair, Member (J) Shri V.M. Doiphode, Advocate, for the Appellant. Shri S. Nathan, Dy. Commissioner (AR), for the Respondent. ORDER [Order per : Ramesh Nair, Member (J)]. - The appeal is directed against Order-in-Appeal No. NGP/EXCUS/000/APPL/05l/l3-14, dated 27-3-2014 passed by Commissioner of Central Excise Customs (Appeals), Nagpur. 2. The facts of the case is that the appellant had filed an application for refund of Customs duty of ₹ 1,34,34,035/- towards excess paid Customs duty against import of goods vide 28 Bills of Entry. The ground for refund is that the appellant paid CVD in respect of import of goods, namely, Indigo Vat Blue falling under CTH 3204 15 59 under bona fide mistake and without the knowledge about the benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 12/2012-C.E., dated 17-3-2012 (SI. No. 133) relying on the judgment of Hon ble Supreme Court in the case of CC (Prev), Amritsar v. Malwa Industries Ltd. - 2009-TIOL-17-SC = 2009 (235) E.L.T. 214 (S.C.) held that the exemption notification is applicable to other products and preparations of any kind which would cover the goods imported by the appellant. As regards the unjust enrichment, as against the claim of the appellant that the amount of refund has been shown as refundable CVD as appears under the head of advances in books of accounts, the lower appellate authority did not find satisfactory because, though find the amount have been shown as deposit in the relevant years does not mean that subsequently they have not been apportioned towards expense accounts. 3. The learned Commissioner also contended that unless the appellants are able to show this amount was subsequently apportioned in the expenses account or will not be done so in future, it cannot be said that the incidence of duty has not been passed on. Thus, the appellant failed to establish the burden of duty incidence has not been passed on and in fact borne by them only. On the above findings, learned Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. He stated that refund amount is shown as receivable even till date in the books of accounts and not booked as expenses. Therefore, the incidence of said amount has not been passed on to any other person. Accordingly, the unjust enrichment is not applicable in the present case. : 5. The learned Deputy Commissioner (AR) appearing for the Revenue reiterates the findings of the impugned order. 6. We have carefully considered the submissions made by both the sides and perused the records. 6.1 The lower adjudicating authority had rejected the same on three points. Firstly, the appellant has not challenged the assessment of bill of entry. Secondly, the exemption Notification No. 12/2012-C.E., dated 17-3-2013 is not admissible to the appellant. Thirdly, the claim is hit by unjust enrichment. However, the learned Commissioner (Appeals) in the impugned order upheld the order on two counts, i.e. non-challenging the assessment of bill of entry and second unjust enrichment. The learned Commissioner has categorically held that the appellant is entitled for the exemption Notification No. 12/2012-C.E. Since the eligibility of the Notification No. 12/2012-C.E. has been held in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut filing any appeal, because in the present provision if the self assessment is done then there is no order of assessment by any proper officer. So in view of the above, in the case where duty was paid after the amended Section 27 i.e., after 8-4-2011 where a person has paid duty on self assessment, the refund is maintainable. The judgment of Apex Court in the case of Priya Blue Industries Ltd. is in context of old Section 27 where the duty was to be paid in pursuance of the order of assessment. Moreover, in the case of Aman Medical Products Ltd. (supra), the Hon ble Delhi High Court distinguishing the judgment of Hon ble Apex Court in the case of Priya Blue held as under : 3. Before we proceed to decide the issue, it would be necessary to reproduce the relevant part of the relevant provision, namely, Section 27 of the Customs Act, 1962 which is as under : 27. Claim for refund of duty . - (1) Any person claiming refund of any duty - (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order which is appealable and the party did not choose to exercise the statutory right of appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that adjudicating authority had committed an error in passing his order. These judgments will, therefore, not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case. 6. We, therefore, answer the question framed by holding that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub-section (1) of Section 27. 7. We accordingly set aside the impugned order dated 3-4-2008 of the CESTAT [2008 (228) E.L.T. 593 (Tri.-Del.)] and uphold the order of the Commissioner of Customs (Appeals) dated 28-1-2005 and remand of the matter to the original authority viz Deputy Commissioner of Customs (Refund) to examine the merits of the matter in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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