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2016 (3) TMI 656 - CESTAT MUMBAI

2016 (3) TMI 656 - CESTAT MUMBAI - TMI - Refund claim - Entitling exemption under Notification No. 21/2002 dated 1.3.2002 subject to submission of essentiality certificated from the Directorate General of Hydro Carbons- Duty paid on spares imported for use on the drilling ships as there was delay in obtaining the said certificates refund claim rejected on two grounds, one is unjust enrichment and other is refunds were filed without challenging the assessment - Held that:- the appellants have rel .....

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t there was no unjust enrichment was on appellants and they have failed to discharge it. Also as per the decision of Hon'ble Supreme Court in the case of CCE Vs. Flock (India) Pvt. Ltd [2000 (8) TMI 88 - SUPREME COURT OF INDIA], one is necessarily required to challenge the assessment orders to be eligible to claim refund but the appellant also failed to do so. Therefore, in failure to comply both the grounds, the appellant is not entitled to refund claim. - Decided against the appellant - Appeal .....

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the Directorate General of Hydro Carbons. Since they required material for operations and there was delay in obtaining the said certificates they paid duty. Subsequently they obtained the said certificates and filed refund applications. The said refunds were rejected on following grounds- (i) Unjust enrichment (ii) Refunds were filed without challenging the assessment, in terms of decision of Hon'ble Supreme Court in the case of Flock India - 2000 (120) ELT 285 (SC) The refunds were rejecte .....

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They argued that the once Commissioner (Appeals) himself has recorded that findings, he cannot then hold that there was unjust enrichment. They also argued that reliance can not be placed on the case of CCE Vs. Flock (India) Pvt. Ltd. - 2000 (120) ELT 285 (SC) as in that case the issued involved as classification of goods. He argued that instead reliance should be place on decision of Hon'ble Supreme Court in case of Raj Industries 2000 (120) ELT 50 (SC) and in case of Bhadrachalam Paperboar .....

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ract to assert that there was no unjust enrichment. The basic facts of actual transaction have not been produced. From the terms of contract it may appear that there was no unjust enrichment, but by itself it is not sufficient evidence. Commissioner (A) has rightly observed that the appellant should produce some reliable evidence of actual transactions. We find that the terms of contract can only point at the possibility of unjust enrichment or otherwise but can not be treated as evidence. The o .....

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Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words "in pursuance of an order of Assessment" necessarily imply that a claim for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund and the correctn .....

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