9911796707
TMI Blog1994 (8) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... y on 8th of October, 1986 and the assessment was made on the basis of the enhanced rates by implementing the above notifications issued on 6th of October, 1986 instead of making such assessment at 10% ad valorem on the basis of the Notification Nos. 62/85 and 311/86. The writ petitioners filed a refund application seeking refund of Rs. 3,62,398.39 being the excess duty paid under protest. The Assistant Collector of Customs rejected the refund application of the writ petitioners and on appeal, the Collector of Customs (Appeals) set aside the said order of the Assistant Collector of Customs and remanded the case back to him for re-hearing. Again the Assistant Collector of Customs rejected the claim holding that the writ petitioner must obtain an order of assessment from the group concerned and file a claim before the Collector of Customs (Appeals). Before the Collector of Customs (Appeals) the writ petitioners produced a letter dated 18th of August, 1988 from Government of India, Department of Publication, Book Department, to show that they had received the concerned notification for publication on 29th of January, 1987 and put for sale on the same date. The Collector of Customs (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court in the writ jurisdiction, the assessee cannot get refund on the basis of the order of the High Court without fulfilling the conditions as provided in the amended provisions of Section 11B of the Central Excises & Salt Act, 1944. Mr. Roy Chowdhury, appearing for the customs authorities has submitted that since the facts stated in the writ petition are not disputed, it would not be necessary for the customs authorities to file any affidavit-in-opposition and this writ petition can be disposed of on the facts alleged in the writ petition. Accordingly, this writ petition is taken up by consent of parties. 5.In order to appreciate the points raised by Mr. Roy Chowdhury, it would be necessary to consider the facts of the case in the Supreme Court because there cannot be any quarrel on the principles laid down by the Supreme Court in the aforesaid decision to the effect that the assessee is to apply before the Assistant Collector of Customs under the amended Section 11B of the Central Excises & Salt Act, 1944 (hereinafter referred to as the Salt Act) to obtain an order of refund despite such direction for refund has been made by the High Court on the writ petition. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with interest thereon within two months from that date. The said prayer was resisted by the Union of India contending that the writ petitioners had already recovered the duty in question from others and therefore, they were not entitled to any refund in view of Section 11B of the Salt Act. In spite of such resistance on behalf of the Union of India, High Court passed an order directing the Union of India to refund the amount deposited with interest within two months by an order dated 19th of September, 1991. In the facts and circumstances of that case before the Supreme Court as stated hereinabove, it was held by the Supreme Court that in view of Section 27, sub-section (3) of the Act, as amended, the order of refund which was passed by the High Court, to give effect to its earlier order was invalid as the Supreme Court was of the view that the order for refund of excess duty paid by the writ petitioners attracted the provisions of sub-section (3) of Section 11B of the Salt Act which came into force on 20th September, 1991. It appears also from the facts stated in the said decision of the Supreme Court that an application for refund was filed by the writ petitioners in that case be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to refund on the ground of doctrine of unjust enrichment. At the time of hearing of this writ application, it was submitted by Mr. Roy Chowdhury, on behalf of the Customs Authorities, that although the writ petitioners may be entitled to refund on the basis of the order passed by the Appellate Tribunal, their claim must be considered in the light of the amended provisions of Section 27 of the Act by the Assistant Collector of Customs. As noted earlier, under the new Section 27 of the Act, it has been provided, inter alia, that an application for refund of customs duty shall be accompanied by such documentary or other evidence [including the documents referred to in Section 28(c)] as the applicant may furnish to establish that the amount of duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such had not been passed on by him to any other person. It is, therefore, reiterated that if an application for refund was already made before the commencement of the amended provision of Section 27 of the Act, such application shall be deemed to have been made in view of amended Section 27(1) of the Act and the same shall be dealt with in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presumption laid down under Section 28D made this very clear." 9.The Division Bench of the Bombay High Court in the aforesaid decision has observed that the question of unjust enrichment arises under the amended scheme when a refund is asked by a person who has sold the imported goods and in the process directly passed on the duty to the buyer. In the present case, it has not been disputed before me that the goods were imported under Open General Licence for own use and the same would also be evident from the Bill of Entry, copy of which has been annexed with the writ application as Annexure `X'. It has also not been disputed before me by Mr. Roy Chowdhury that the writ petitioners imported the consigned goods for own use and the excess duty was paid by him. But Mr. Roy Chowdhury only submitted that as the writ petitioners imported the goods for use of the same in the manufacture of plywood block board and flush doors which are sold to others, doctrine of unjust enrichment would be very much applicable in the case of the writ petitioners and as such, question of refund of duty could not arise at all. In my view, this submission of Mr. Roy Chowdhury has no substance for the two f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorities did not raise any such contention that the writ petitioners sold the imported goods as it is to third parties. 10.In view of my discussions made hereinabove, and in view of the finding made that the additional duty of customs has not been directly passed on by the writ petitioners to any third party by selling the imported goods, they are entitled to the refund. 11.The Customs Authorities are directed to allow the application for refund of the additional duty of customs paid by the writ petitioners as per their refund application filed before the Assistant Collector of Customs and to pay the same to the writ petitioners in terms of the Order of the Customs, Excise and Gold (Control) Appellate Tribunal in Appeal No. C/118/89-D disposed of on 28th July, 1992 after giving them the benefit of proviso (b) of Section 27(2) of the amended Customs Act, within a period of three months from this date positively. 12.Although the claim for interest was made by the writ petitioners in the application for refund but it appears that such claim was not made by the writ petitioners at the time of passing the direction by the Appellate Tribunal on the Customs Authorities to pay the a ..... 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