TMI Blog2017 (2) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... t claimed by the appellant. Thus, there is no clarity in the facts and findings of the case - In my considered view, it should be decided as to whether the refund claim is arising out of the provisional assessment or not and thereafter, the claim of interest could be decided under the provisions of Customs Act, 1962 - appeal allowed by way of remand. - C/590/2009 - FO/A/75112/2017 - Dated:- 14-2-2017 - Shri P.K.Choudhary, Member (Judicial) Shri Jnanesh Mohanty, Advocate for the Applicant/Appellant Shri S.K.Naskar, AC(AR) for the Respondent ORDER Per: Shri P. K. Choudhary 1. M/s. Paradeep Phosphates Ltd., the appellant herein have preferred this appeal against the impugned order, upholding that since the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und and pay the same to the respondent assessee. Subsequent to the Tribunal's order, the Deputy Commissioner of Customs, Customs House, Paradeep, passed the order for issuance of cheque. 4. It is the case of the appellant that the refund claims were subject matter of rejection by the original authority 5 times (on account of denovo orders by Appellate Authority) on the ground of not passing the test of unjust enrichment, until Hon ble CESTAT by its order dated 08.08.2008 settled the issue on merit and that unjust enrichment clause stands satisfied in favour of the party instead of credit to the Consumer Welfare Fund on 15.10.2008. 5. Heard both sides and perused the appeal records. 6. I find that the appellant filed an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to you vide order No.DC/CUS/PDP/BBSR-I/41/2008(R) dated 15.10.2008. As the order in this regard has been implemented, no part of it, is pending. Hence interest on the refund amount is also not payable. Secondly your claim arised due to finalization of the provisional assessment and provisional assessment is governed by section 18 of the Customs Act, 1962 and there was no provision for payment of interest on the refunds so arised at the time of finalization of assessment or crediting the amount to the Welfare fund. Yours faithfully Sd/ (M.L.MEENA) DEPUTY COMMISSIONER CUSTOM HOUSE, PARADEEP. 7. It is apparent from the above letter that the assessment was provisional under section 18 of the Customs Act. The paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 or re-assessed, as the case may be,] and if the amount so paid falls short of, or is in excess of [the duty [finally assessed or re-assessed, as the case may be,]], 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 or re-assessed, as the case may be,] 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 excess duty. [(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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.] 8. I find that both the authorities below proceeded on the basis that the assessment was provisional and therefore the amended section 18 in 2006 could be attracted. The ld.Advocate on behalf of the appellant submitted that the imported Phosphoric Acid, being of Morocco origin, is eligible for the benefit of exemption Notification No.236/89/Cus dated 01.09.1989, in terms of which, the applicable rate of duty is 12% ad velorem. The benefit of exemption was denied by the department, while assessing the Bill of Entry ignoring the appellant&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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