TMI Blog2017 (7) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant. It devolves upon the competent authority to examine the evidence of having borne the incidence furnished by the applicant and to render cogent findings on the non-acceptability of such evidence before ordering the credit of the claimed amount to the Fund - the first appellate authority has not done so. It would, therefore, be in the fitness of things for a re-examination of the claim by the original authority to determine if in the context of evidence furnished by the appellant, the burden of duty has indeed been passed on - appeal allowed by way of remand. - C/120/07 - A/87966/17/CB - Dated:- 12-6-2017 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri Ravinder Jain, Consultant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessments were provisional and that the amount claimed as a refund had been a deposit insisted upon as a surety to be adjusted in the event of additional demand upon finalisation. Consequently, it is claimed, that there were no grounds for presuming that the burden of this amount had been passed on to justify credit of the sanction to the Fund. It is their further claim that the certificate furnished by Chartered Accountants made it clear that the selling price had not altered between June 2002 and October 2002 following which it had started declining and that the amount of claim was shown in the books of accounts as receivables. It is also the contention that in limiting the claim to only a portion of the amount applied for, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the authority entrusted with the power to sanction refunds. Moreover, by having failed to place the applicant on notice that of intend to deal with the claim in compartments, the proceeding itself stands vitiated. This alone is sufficient to quash the proceedings before the original authority and the appellate authority. Accordingly, we do so; in order that the claim is handled in an appropriate manner, it is also necessary for us to consider the submissions made on behalf of both sides in relation to the bar of unjust enrichment. 6. There is no dispute that the claim pertains to the surety required of the importer, in accordance with extant procedure with assessment having been rendered provisional owing to scrutiny of the value decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment under the Customs Act, the doctrine of unjust enrichment will not apply considering Sections 27 (2), (3) of the Customs Act. The doctrine of unjust enrichment will only apply when the assessment is finally completed. There can be no application for refund before the final assessment is made. 22. Insofar as the Customs Act, 1962 is concerned, under Section 27 (3), no refund of duty and interest can be made without satisfying the requirements of subsection (2). Therefore, even though under Section 18, sub-section (5) has been introduced w.e.f 13-7-2006, the issue of refund was always subject to the provisions of Section 28 (3), considering that Sections 18 (2) (a) applies to final assessment. We may only note that the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the price charged of the customer. No evidence is forthcoming that the entire amount, or any portion thereof, had been charged to the cost of sales account in any of the years. 10. The original authority has, erroneously, placed emphasis on capitalisation without a proper appreciation of the facts as well as the implications of such capitalisation. Various decisions handed down from time to time on the subject of unjust enrichment are centred around the ways and means by which it can be ascertained if the price of the output did, in some manner of the other, include the duty liability discharged on the inputs. At the same time, these decisions are unanimous in acknowledging that there is no one surefire way of ascertaining that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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