TMI Blog2008 (7) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of various petroleum/petrochemical products such as Para-xylene, Naptha in bulk, EDC at Surat during the period December, 1996 to October, 2000. The bills of entry filed by them were initially assessed provisionally since the bills of entry were filed with provisional price and based on bill of lading quantity. The bills of entry were finally assessed by the proper officer in due course. In respect of 5 bills of entry, the final assessments revealed the excess payment and consequential refund claims have been dealt separately and are not part of the dispute before us. For convenience, the relevant portion to the Table giving details of bills of entry, date of assessment etc. are extracted from the order in original and are given below since the Table facilitates better appreciation of the facts of the case and understanding the problems: Relev-ant B.E. No. Date Date of final assess-ment B/E Date of receipt of claim in Divi-sion Date of Return to the impo-rter Date of Resub-mission Date of Return to the impo-rter Date of Resub-mission Date of Return to the impo-rter Date of Resub-mission Refund Amount claimed by the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 26-2-2001 10-8-2001 - 17-10-2001 6-11-2001 23-11-2001 20-3-2002 110724 247/00-01 14-9-2000 7-3-2001 13-8-2001 17-10-2001 6-11-2001 23-11-2001 20-3-2002 139236 331/00-01 30-10-2000 26-2-2001 10-8-2001 - - 17-10-2001 6-11-2001 23-11-2001 20-3-2002 45814 333/00-01 31-10-2000 27-2-2001 10-8-2001 - - 17-10-2001 6-11-2001 23-11-2001 20-3-2002 248312 It may be seen from the Table that the finalization of assessment took almost a year and subsequently, the appellants also took the maximum time admissible i.e. slightly less than six months to file refund claims which are in dispute before us. The original adjudicating authority has also explained that refund claims were returned at least three times and finally, the appellants requested for a speaking order and the final submission of refund claim was made on 20 th March, 2002. 2. The refund claims have arisen because the quantity of imported legal bulk cargo discharged from the vessels was found to be less than the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim has been rejected is that the final assessment order has not been challenged and therefore, the refund claim cannot be considered. The learned Advocate relied on the following judgments in support of his contention that the assessment of duty on goods which are not imported is a nullity and consequently, the payment of duty is to be treated only as deposit which is liable to be refunded and therefore such refund claim is not governed by the provisions of Section 27 of the Customs Act, 1962. (a) ITC Ltd. v. C.C, Calcutta - 1999 (113) E.L.T. 213 (Tri.) (b) Star Textile Engg. Works v. C.C., Bombay - 1985 (22) E.L.T. 552 (Tri.) (c) Pratap Steel Rolling Mills Ltd. V. C.C., Jamnagar - 2006 (200) E.L.T. 255 (Tri.-Del.) (d) Century Textiles Industries Ltd. v. C.C., Mumbai - 1998 (100) E.L.T. 466 (Tri.). It is seen that the judgments cited in support of this contention are not comparable on facts. In ITC case reported in 1999 (113) EL.T. 213, the refund claim was made after verification with foreign supplier that the goods had actually not been sent. Virtually, the whole consignment had not come and after confirmation of the foreign supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the instructions did not provide that appeal must be filed against the assessment. It was only by a Circular No. 24/04, dated 18-3-04 that the CBEC issued instructions that appeal should be filed against the assessment for claiming refund. Both the original adjudicating authority and appellate authority have cited several decisions of the Tribunal, Courts and also Supreme Court in support of their contention that the assessment order should have been challenged before filing refund claim but in view of the judgment of the Apex Court in the case of CCE. v. Dhiren Chemical Industries - 2002 (139) E.L.T. 3 (S.C.) wherein it was held that where the instructions of Board, even if contrary to statute/rules if beneficial to assessee/importer are in existence benefit should be extended. Therefore, it has to be accepted that instructions would apply prospectively and since the imports by the appellants were prior to 18-3-04, the refund claims have to be admitted under Section 27. Since no refund claims held to have been filed beyond the limitation, the claims have to be examined on merits and have to be considered. 7. As regards the alternative request for remission under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport of their contention that unjust enrichment is not applicable: (a) Mafatlal Industries v. UOI - 1997 (89) E.L.T. 247 (S.C.) (b) Kinetic Motors Ltd. v. C.C.E - 2001 (136) E.L.T. 85 (Tribunal) = 2000 (40) RLT 450 (T) (c) Escort Yamaha Motors v. C.C, New Delhi - 2000 (122) E.L.T. 883. However, the adjudicating authority relied upon the judgment of Solar Pesticides reported in 2000 (116) E.L.T. 401 (S.C.) wherein it has been held that principles of unjust enrichment is applicable in the case of captive consumption also which is the case here. 11. Further it has to be noted that duty was paid at the time of importation on full quantity as mentioned in the bill of lading and finalization of provisional assessment took place after a year or so in respect of almost all the bills and refund claims were filed after 4 to 6 months subsequent to finalization of assessment. Whatever be the ground on which refund claim has been filed, the fact remains that duty paid goods were used by the appellants in further manufacture and by that time they filed refund claim, it was more than 1½ years after payment of duty Since all the goods imported have been used for capti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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