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TMI Blog2018 (6) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 to March 2005 vide various Bills of Entry. At the time of filing the Bills of Entry, the appellant claimed classification of these products under sub-heading 85252017 of Customs Tariff Act, 1974 r/w Customs Notification No.. 21/2002 (Sl. No. 313). As the department disputed the applicability of the benefit of notification to the products in respect of past consignments also, the appellant paid the duty under protest and cleared the consignments and challenged the assessment orders. 3. The dispute regarding the benefit of exemption under Sl.No. 313 of Notification No. 21/2002 to fixed wireless telephones ultimately reached the Apex Court and vide judgment dated 13.12.2005 reported in 2006 (194) ELT 11 (SC), the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) remanded the matter to examine the issue of unjust enrichment. Appeal No. C/ 191/2010 is filed against the said order. 6. Again, for the period March 2005, appellant had filed refund application dated 11.2.2006 in regard to 28 Bills of Entry. The adjudicating authority rejected the refund claim for Rs. 7.18 crores on the ground of unjust enrichment. The appellant preferred appeal before Commissioner (Appeals) and vide Order-in-Appeal No. 3/2010 dated 4.1.2010, the Commissioner (Appeals) remanded the matter for consideration of the issue of unjust enrichment. Appeal No. C/ 192/2010 is filed against said order. 7. On behalf of the appellant, Id. counsel Shri P.R. Ranganath assisted by Shri M. Kannan h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act, 1962. The said provision was introduced only with effect from 13.7.2006, and does not have retrospective application. All the refund claims have been filed before 13.7.2006 and therefore the said provision cannot be applied. 7.4 In respect of refund claims filed for the period November 2002 to August 2003, which is challenged in Appeal No. C/ 190/2010, the period involved, the date of refund claim as well as the final assessment is prior to 13.7.2006. Therefore, the said section cannot be applied to examine unjust enrichment. 7.5 In respect of Bills of Entry for the periods November 2004 to December 2005 as well as March 2005, the refund applications were filed much before 13.7.2006. The refund applications for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court dated 13.12.2005 wherein it was held that the items are eligible for benefit of exemption as per the Notification. The order of finalizing the assessment thereafter was only a technical requirement. This is admitted by the department in Order-in-Appeal No. 3/2010 dated 4.1.2010 wherein the Commissioner (Appeals) has held that the appellants though have lodged the claim of refund before the finalization, the act of finalization of assessment was only a formality as it involved only arithmetical calculations pursuant to the Apex Court's judgment. The Commissioner (Appeals) held that the refund claim filed prior to the finalization of assessments were proper. On such score, the amendment brought forth later on 13.7.2006 ought n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On behalf of the department, Id. AR Shri K. Veerabhadra Reddy appeared and argued the matter. The foremost contention put forward by the Id. AR is that Commissioner (Appeals) has only remanded the matter to consider the issue of unjust enrichment and the appellant would get an opportunity to establish that the incidence of duty is not passed on another. That the appellant could avail the opportunity to establish that the incidence of duty is not passed on to another. 8.1 He submitted that even prior to introduction of section 18(5) in the Customs Act, Section 28D governed the issue of unjust enrichment in the case of refund claims. The refund applications for the period November 2004 to December 2005 and March 2005 has been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the above paragraphs. The Hon'ble High Court in the case of Scientific Instruments (supra) observed as under:- "9. Learned counsel appearing for the importer/assessee submitted that having regard to the above said observation of the Apex Court in the case of Mafatlal Industries Ltd., (supra) the observation by the Tribunal in paragraph 6.2 has to be set aside. The Tribunal pointed out that the order of the Tribunal dated 9-7-2007, the provisional assessment finalized in the year 2000 was set aside resulting in a refund to be made to the assesseee The Tribunal pointed out that on account of such finalisation of the provisional assessment, excess amount to be paid to the assessee was ordered to be refunded prior to 1-8-1998. To this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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