TMI Blog2007 (11) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in respect of the Final Order 454/2007,dated 11-4-2007 [2007 (220) E.L.T. 299 (Tri.)] passed by this Bench. 2. The learned Advocate, Shri V.J . Shankaran, who appeared on behalf of the appellants pointed out that the said Final Order dealt with the issue of unjust enrichment arising consequent to the finalization of provisional assessment. In the said Final Order, the Tribunal relying on its own decision in the case of CCE, Visakhapatnam v. Godavari Fertilizers Chemicals Ltd . - 2006 (202) E.L.T. 511(T) and also the decision of the Hon'ble High Court of Judicature at Bombay in the case of Bussa Overseas Properties Ltd. v. Union of India , 2003 (158) E.L.T. 135 (Bombay) has held that the doctrine of unjust enrichment woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed provisionally if the importer or the exporter, as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty finally assessed and the duty provisionally assessed. (2) Where the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, then- (a) in the 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 or 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed and the duty provisionally assessed. (2) Where the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, then- (a) In the 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 or 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 execute a bond, binding himself in a sum equal to twice the amount of the exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) The export duty a specified in section 26; (e) drawback of duty payable under sections 74 and 75." 3. It was pointed out that in the present case the imports were prior to the period of amendment of Section 18 and therefore in view of the amendment with effect from 13-7-2006, it is very clear that the provision of Section 27 of the Act could not be read into the provisions of Section 18 of the Act to deny refund on the ground of unjust enrichment. The learned Advocate further pointed out to a recent decision of the Tribunal in the case of Commissioner of Customs, Ahmedabad v. M Hindalco Industries Ltd . [2007 (215) E.L.T. 113 (Tri.-Ahmd.) = 2007-TIOL-735-CESTAT-AHM]which has taken into consideration the vital aspect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account the effect of the amendment. On going through the amendment, it is very clear that the authority granting refund consequent to the finalization of the provisional assessment should take into account the aspect of unjust enrichment and grant the refund to the party. In case it is proved that the burden of duty has been passed on to the ultimate consumer then the refund due would be only credited to the Consumer Welfare Fund. In view of this position an error apparent on the case of the record has happened purely due to the inadvertence of the parties concerned. In view of the amendment of Section 18, the position which emerges now is that prior to the amendment of Section 18, the doctrine of unjust enrichment can not be applied to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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