TMI Blog2016 (5) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the assessment was not applicable. Therefore, the lower authority has wrongly credited the sanctioned refund in the Consumer Welfare Fund. As per the decision of Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA], the bar of unjust enrichment is not applicable in case of provisional assessment. Therefore, the impugned order is not sustainable and set aside. - Decided in favour of appellant - Appeal No. C/68/2005 - Order No.A/87339/16/SMB - Dated:- 29-3-2016 - Shri Ramesh Nair, Member (Judicial) For the Petitioner : Shri Narendra Dave, C.A. For the Respondent : Shri D.K. Sinha, Asstt. Commr. (A.R) ORDER PER: RAMESH NAIR The appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just enrichment is attracted in this case. The sanctioning authority sanctioned the refund claim but credited the same to the Consumer Welfare Fund vide adjudication order dt. 17.6.2004. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) , who vide impugned order rejected the appeal. The Ld. Commissioner (Appeals) decided the case on the ground that the appellant have not challenged the order wherein the assessment order was finalized and relying on the judgment in the case of Priya Blue Industries Ltd. Vs. Commissioner of Central Excise 2004 (172) ELT 145 (S.C.) the appeal was rejected. Aggrieved by the impugned order, the appellant is before me. 3. Shri Narendra Dave Ld. Chartered Accountant appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the refund was allowed and matter travelled upto Supreme Court wherein under Civil Appeal No. 3000/2007, the Honble Supreme Court dismissed the Revenues appeal holding that doctrine of unjust enrichment will not apply to provisional assessment. 4. On the other hand, Shri D.K. Sinha, Ld. Assistant Commissioner (A.R. ) appearing on behalf of the Revenue reiterates the findings of the impugned order. He also placed reliance on the following judgments: (i) Nippon Leakless Talbros Pvt. Ltd. Vs. Commissioner of Customs (Imports), Mumbai-2015-TIOL-692-CESTAT-MUM (ii) Commissioner of Customs (Import), Mumbai Vs. Kanakia Constructions Pvt. Ltd.-2008 (230) ELT 592 (Bom.) (iii) Bussa Overseas Pvt. and Properties Pvt. Ltd. Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as the case may be; or (b) where the proper officer deems it necessary to subject any imported goods or export goods to any chemical or other test for the purpose of assessment of duty thereon; or (c) where the importer or the exporter has produced all the necessary documents and furnished full information for the assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the duty, the proper officer may direct that the duty leviable on such goods may, pending the production of such documents or furnishing of such information or completion of such test or enquiry, be assessed provisionally if the importer or the exporter as the case may be, furnishes such security as the proper offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty paid by the importer, or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75.] From the above, it is clear that at the time of provisional assessment the bar of unjust enrichment in case of a refund arising on finalization of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und claim is filed after the final decision under Rule 9B(5) re-agitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation. As per the above observation of the Hon ble Supreme Court, the bar of unjust enrichment is not applicable in case of provisional assessment. In the case of TVS Suzuki Ltd. (supra) the Honble Supreme Court dismissed the appeal of the Revenue holding that in case of provisional assessment unjust enrichment is not applicable. This judgment was accepted by the Central Board of Excise Customs vide Circular No. 744/60/2003-CX dt. 11.9.2003. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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