TMI Blog2008 (2) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... r] - These appeals are filed by the Revenue against the Order-in-Appeal No. 58 59 (CRC)/2007 (JNCH), dated 26-4-2007, vide which the refund was sanctioned interest on refund amount was also net granted to the respondents. 2. The relevant facts that arise for consideration are that the respondents herein imported two consignments of White Poppy Seeds from Turkey and filed Bills of Entry for clearance. The respondent declared the FOB value of US $ 850/- Per MT for both consignments. However, the Department assessed the consignments provisionally at the FOB value of US $ 1200/- per MT on which customs duty payable was ₹ 21,34,659/- and the said amount was deposited by the respondent and sought provisional clearance of the goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of CA certificate is not enough to come to conclusion that the respondent has not passed on the duty burden. It is his submission that the decision of Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. UOI - 1997 (89) E.L.T. 247 (S.C.), clearly indicates that the CA certificate is not a final word in the case of refund. He relies heavily on paragraphs 94 99 of the order in support of his contention. 3. The learned Counsel appearing on behalf of the respondent submits that the issue involved in this case is slightly different. It is his submission that FOB value as declared by the respondent initially was admitted by the department and the goods were cleared provisionally on provisional assessment. He submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld as under - 14. As stated above, Para 104 of the judgment in the case Mafatlal Industries Ltd. (supra) states that if refund arises upon finalisation of provisional assessment, Section 11B will not apply. Para 104 of the said judgment does not deal with payment under protest. In the light of what is stated herein, we may now consider the judgment of this Court in the case Sinkhai Synthetics Chemicals Pvt. Ltd. (supra). In that matter, the assessee was a manufacturer. The assessee claimed exemption which was denied by the Department. The assessee went in appeal to CEGAT. Pending appeal, assessee paid excise duty under protest. The assessee succeeded before the CEGAT and claimed refund on 17-1-1991. Refund was denied by the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) observed that the bar of unjust enrichment was not applicable as the assessee claimed refund consequent upon final assessment. He allowed the refund claim. CEGAT agreed with the view of Commissioner (Appeals). Before this Court, the Department conceded rightly that in view of Para 104 of the judgment of this Court in Mafatlal Industries Ltd. (supra), bar of unjust enrichment was not applicable in cases of refund consequent upon adjustment under Rule 913(5). The judgment of this Court in the case of TVS Suzuki Ltd. (supra), therefore, supports the view which we have taken herein above that refund consequent upon finalization of provisional assessment did not attract the bar of unjust enrichment. 5. I also fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 161] as contrasted to the Constitution Bench decision in Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.) = 1997 (5) SCC 536]. The three-Judge Bench which considered the correctness of the aforesaid two decisions (of three-Judge Bench) has in Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.) = 2004 (4) SCC 34] held that the judgment in Sinkhai Synthetics's case (supra) was per incuriam [para 14 at page 52] and approved the decision in the later case, i.e., TVS Suzuki's case (supra). The three-Judge Bench has also taken the same view, as was taken by the Tribunal, to the effect that the doctrine of unjust enrichment is not applicable to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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