TMI Blog2000 (4) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... .A.S. Rao, ld. advocate for the appellant and Shri Sumit K. Das, ld. JDR for the respondent Commissioner. 3.Brief facts are: The appellants who are engaged in the manufacture of motor cycles falling under sub-heading 8711 of the Schedule to the Central Excise Tariff Act, 1985 had imported certain components from Japan. The Special Valuation Branch of the Customs, Bombay demanded the loading of the invoice value by a certain percentage. Appellants claim that they agreed to pay the amount arising out of loading on a provisional basis with a view to get the early clearance of the imported goods and the imports were thus cleared on the basis of provisional assessment under Section 18 of the Customs Act. The Appellants thereafter filed an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the bar of unjust enrichment will not apply to refunds arising from final assessment. Subsequently a show cause notice was issued on 5-5-1998 which was adjudicated by order dated 3-8-1998. The Assistant Commissioner by the said order sanctioned refund of Rs. 58,47,182/- but directed the said amount to be credited in the Consumer Welfare Fund on the ground that corroborative evidence by sale invoice showing that the amount claimed as refund has not been passed on to the customers, had not been produced and that no documentary evidence in the form of purchase invoice had been placed on record of the components purchased locally to verify the price of the final product. The Commissioner (Appeals) rejected assessee's appeal and confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the lower authority was therefore, contrary to the law laid down by the Apex Court. 5.It is also submitted that apart from the fact that the appellants' case was fully covered in their favour by the Supreme Court decision in Mafatlal Industries case, on the factual aspect also, their case merited acceptance. Ld. Counsel has pointed out that the Commissioner (Appeals) had, without calling upon the appellant to show evidence as to how the imported components were utilised in the manufacture of the motorcycles, taken the view that imported components were utilised in the motor cycles. 6.Ld. Counsel relied on the following case law in support of the appellants' claim that refund claims arising from provisional assessments will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides case had been overruled by the Apex Court and it has been held that the bar of unjust enrichment would apply even in the case of captive consumption of the goods. This apart, the present appellants had also not been able to satisfy the authorities below that the burden of duty had not been passed on to the customers. 9.We have considered the submissions and have perused the records. We observe that the impugned order was passed on 12-8-1999 and the Apex Court judgment in Mafatlal (India) Industries v. UOI which went into the entire question of law of unjust enrichment had been reported in 1997 (89) E.L.T. 247 (S.C.). Ld. Counsel had contended before us that the appellants had brought the said decision of the Apex Court to the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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