Custom, Excise & Service Tax Tribunal
Repl Engineering Ltd vs The Commissioner Of Customs, Acc on 2 July, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.II APPEAL No.C/755/08 (Arising out of Order-in-Appeal No.34/2008 Misc. ACC dated 13/03/2008 passed by Commissioner of Customs (Appeals), Airport, Mumbai) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) ====================================================
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental : authorities?
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REPL Engineering Ltd., Appellants
Vs.
The Commissioner of Customs, ACC,
Mumbai Respondents
Appearance:
Ms.Shilpa Balani, Advocate for Appellants
Shri.S.M.Vaidya, SDR for Respondents
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Date of Hearing : 02/07/2009
Date of decision : 02/07/2009
O R D E R No:..
Per: Ashok Jindal
1. This appeal is filed by the appellant against the order-in-appeal for denial of the refund claim of the appellant on the ground that the refund claim is hit by the bar of unjust enrichment.
2. The issue involved is that whether refund of custom duty arising out of finalization of provisional assessment, in terms of provisions of Section 18 of the Customs Act, relatable to the period prior to 13/07/2006, when the provisions of Section 18 were amended, would attract the provisions of unjust enrichment or not.
3. Brief facts are that the appellant filed 42 Bills of Entry and the same were assessed provisionally by the department and 1% revenue deposit was made by the appellant. This was on account of SVB enquiry into the appellants imports.
4. The Deputy Commissioner of Customs accepts the value declared by the appellant and subsequent the assessment was finalized. On finalization of said assessment, the appellant applied for refund of revenue deposit of 1% , which worked out to Rs.1,81,374/-. The Assistant Commissioner credited the refund amount to Consumer Welfare Fund on the ground that the refund was hit by unjust enrichment.
5. The appeal before the Commissioner of Customs (Appeals) was also dismissed. Aggrieved by the same, the appellants filed this appeal before me.
6. By confirming the order of the Assistant Commissioner, the Commissioner (Appeals) held that all the claims of refund under the Customs Act, 1962 must pass the test of unjust enrichment contained in Section 27 and unless it is established that the duty element has not been passed on to others, no refund can be granted.
7. During the course of argument Ms.Shilpa Balani, Ld. Advocate appearing on behalf of the appellant submits that the refund claim is not hit by unjust enrichment as the refund claim has arose on account of finalization of provisional assessment prior to 13/07/2006. She also contented that Section 18 of the Customs Act deals with the finalization of provisional assessment and the main issue involved in this case is that whether refund of Customs duty arising out of finalization of provisional assessment in terms of the provisions of Section 18 of the Customs Act for the period prior to 13/07/2006 would attract the provisions of unjust enrichment or not.
8. The Ld. Advocate placed reliance on the decision in the case of CC Vs. Hindalco Industries Ltd., (2008 (231) ELT 36 (Guj.), wherein it was held that on interpretation of provisions of Section 18 of Customs Act, on finalization of assessment, if any excess duty found to have been paid at the time of provisional assessment, Revenue is bound in law to make the refund without any claim being required to be made by an assessee. This was the position of law up to 12/07/2006. Further placed the reliance on the decision in the case of CC Vs. Hindustan Zinc Ltd., (2009 (235) ELT 629 (Tri-LB) wherein it was held that prior to 13/07/2006, refund, which became due on final assessment is to be made without the claim being submitted by the assessee and, therefore, did not attract the provisions of unjust enrichment.
9. Heard.
10. On perusal of the record, I find that this case pertains to period prior to 13/07/2006. The doctrine of unjust enrichment was not applicable at that time and the amended provisions of Section 18 were applicable only from 13/07/2006.
11. In view of the above discussion, I hold that prior to 13/07/2006, the appellant is entitled for the refund on finalization of provisional assessment without the claim being submitted by the appellant and the refund is not attracted by the provisions of unjust enrichment.
12. Accordingly, the appeal is allowed with consequential relief, if any.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) pj 1 4 2