TMI Blog2021 (11) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (2), the obligation is cast on the Revenue to make refund of the excess duty paid and collected. Section 27 of the Act provides for claiming of refund of duty which relates to a claim for refund of duty or interest paid by the assessee or borne by him in a case not falling under the provisional assessment. The provision of unjust enrichment was conspicuously missing in Section 18 of the Act - it has been further held in the said case, that the refund claims consequent upon finalization of provisional assessment does not attract the bar of unjust enrichment for the period prior to the amendment of 2006. The argument of the revenue that the refund claim made by the importer was not on account of finalization of the provisional assessment but on account of excess payment of customs duty for the wrong invoices raised from the supplier was rejected for the reason that the refund claim originally made by the importer on 21.04.1997 was returned to them by the departmental officers with the direction to re-file it after the finalization of the provisional assessments. Once an assessment is provisional, it is provisional for all purposes - the arguments advanced by the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f telecommunication equipment and are the claimant of refund of purported excess payment of customs duty herein. During the year 1995-96, 8 manual bills of entry were filed for import of goods supplied by their overseas suppliers M/s. American Telephone Telegraph Co., USA and undertook clearance of the goods involved therein on payment of applicable customs duties on the invoice values. At that point of time of import, the related party transactions between the importer and their aforesaid overseas supplier were being verified/investigated by the Special Valuation Branch (SVB), Chennai for valuation of import goods and 8 manual bills of entry relating to which the refunds were claimed vide application dated 21.04.1997 on the ground of error in invoicing coupled with downward revision in the price. 3. The investigation on the related party transactions and the valuation of goods initiated by the SVB, Chennai was pending for consideration at that point of time. The refunding authority returned the refund back to the importer citing pendency of finalization of provisional assessment of respective Bill of Exchange (BOE) directing the importer to resubmit the refund claim only afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that Section 18 of the Act is not applicable to the present case as there is no difference between the duty determined in the provisional assessment and the final assessment. Distinguishing the case of M/s. Mangalore Refinery Petrochemicals Ltd., supra, it was submitted that the amendment brought to Section 18 with effect from 13.07.2006 would not have any bearing to the case on hand. 6. Learned counsel Smt. Neethu James along with Sri. Mohammed Ibrahim representing the learned counsel Sri. Ravi Raghavan, appearing for the respondent importer submitted that the respondent has been made to fight the legal battle for refund of duty paid in excess from 1997. The First Appellate Authority in the first round having categorically held that the refund claimed was not barred by limitation, proceeded to consider the matter on the principles of unjust enrichment. Pursuant to remand by the Tribunal, the First Appellate Authority concluded that the purchase order prices inclusive of the entire customs duty, the importer has passed on the burden to their customers explicitly. Placing reliance on M/s. Mangalore Refinery Petrochemicals Ltd., supra , the learned counsel argued th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 excess duty. 10. The amended Section 18 of the Act whereby sub-sections (3), (4) and (5) have been inserted with effect from 13.07.2006 by the Taxation Laws (Amendment) Act, 2006, reads as under : (3) The importer or exporter shall be liable to pay interest, on any amount payable to the Central Government, consequent to the final assessment Order under Sub-section (2), at the rate fixed by the Central Government under Section 28AB from the first day of the month in which the duty is provisionally assessed till the date of payment thereof. (4) Subject the Sub-section (5), if any refundable amount referred to in Clause (a) of Sub-section (2) is not refunded under that Sub- section within three months from the date of assessment of duty finally, there shall be paid an interest on such unrefunded amount at such rate fixed by the Central Government under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vis post amendment and placing reliance on the judgment of M/s. Mangalore Refinery Petrochemicals Ltd., supra, concluded that the assessments were indeed made provisionally subject to SVB clearance of the invoice values at which the appellant had taken imports from their principals. The argument of the revenue that the refund claim made by the importer was not on account of finalization of the provisional assessment but on account of excess payment of customs duty for the wrong invoices raised from the supplier was rejected for the reason that the refund claim originally made by the importer on 21.04.1997 was returned to them by the departmental officers with the direction to re-file it after the finalization of the provisional assessments. Once an assessment is provisional, it is provisional for all purposes. The Revenue has challenged the judgment of M/s. Mangalore Refinery Petrochemicals Ltd., supra, before the Hon'ble Apex Court, the same is pending consideration and there is no stay of the said decision. In this backdrop, the arguments advanced by the revenue that Section 18 of the Act is not at all applicable to the facts of the case is only misconceived, having direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
