TMI Blog2010 (5) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant were assessed provisionally after taking Revenue deposit. However, after finalization of the case, it was held that the relationship is not affecting the declared price which has resulted in a refund of ₹ 9,65,639/-. The adjudicating authority sanctioned the refund claim but ordered, to credit it to the Consumer Welfare Fund under Section 27 of the Customs Act, 1962. The order was challenged before the Commissioner (Appeals) who rejected the appeal. Aggrieved from the same the appellant is before me. 3.1 The learned Advocate appearing on behalf of the appellant submitted that they have imported the goods during the period 2002-2003 when the goods were provisionally assessed and after finalization of the provisional as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the landed cost of the imported goods. Hence, the appellant is entitled to claim refund. To support this contention also he placed reliance on 2008 (225) E.L.T. 497 (Tri.-Mumbai) wherein this Tribunal has held that amount of Revenue deposit not charged by appellant to Profit and Loss Account but included in Balance Sheet as advance recoverable in cash or kind, once amount of revenue deposit shown as recoverable, bar of unjust enrichment will no operate against appellant. Hence, the impugned order is liable to be set aside and appeal be allowed. 4. On the other hand, the Ld. DR fairly agreed that the period involved in this case is prior to 13.7.2006 but he contended that the bar of unjust enrichment is applicable is applicable in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he payment of the deficiency, if any, between the duty finally assessed and the duty provisionally assessed. (2) When the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, then - (a) in a case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of, or is in excess of [the duty finally assessed], the importer of the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed is in excess of the duty provisionally assessed, require the importer to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the provisions of this Act, then - (a) in a case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and it the amount so paid falls short of, or is in excess of [the duty finally assessed], the importer or the exporter of the goods shall pay the deficiency or he entitled to a refund as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed is in excess of the duty provisionally assessed, require the importer to execute a band, binding himself in a sum equal to twice the amount of the excess duty. (3) The importer or exporter shall be liable to pay interest, on any amount payable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable under Sections 74 and 75. The Hon ble High Court of Gujarat and the Larger Bench of this Tribunal has held that prior to 13.7.2006, refund, which become due on final assessment is to be made without claim being submitted by the assessee and therefore did not attract the provisions of unjust enrichment. Same view was taken by this Tribunal in the case of REPL Engineering Ltd. 7. At this stage Dr. T. Tiju the learned SDR filed the decision in the case of Commissioner of Central Excise, Mumbai Vs. Standard Drum Barrel Mfg. Co., reported in 2006 (199) E.L.T.590 (Bom.) and submitted that prior to 13.7.2006 bar of unjust enrichment is applicable. 8. I have gone through the said decision placed before me and find that matter p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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