9911796707
|
Home
Issues involved:
The issue involves whether the refund of customs duty arising out of the finalization of provisional assessment in terms of the provisions of Section 18 of the Customs Act, relating to the period prior to 13-7-2006, when the provisions of Section 18 were amended, would attract the provisions of unjust enrichment or not. Comprehensive details of the judgment for each issue involved: 1. The Revenue filed an appeal against the order passed by the Commissioner (Appeals) regarding the refund of customs duty arising from provisional assessment not being hit by unjust enrichment. The Revenue relied on the decision of the Hon'ble Supreme Court in UOI v. Raj Industries, emphasizing that the principles of unjust enrichment apply to all proceedings. The Revenue argued that refund entitlement under Rule 9B(5) should be subject to unjust enrichment principles before being granted. 2. The respondents' advocate referred to Tribunal decisions stating that prior to the 2006 amendment of Section 18 of the Customs Act, the doctrine of unjust enrichment did not apply to refunds from finalization of provisional assessment. Specific cases like M/s. A.P. Power Corporation Ltd. v. CC, Visakhapatnam and M/s. Timken India Ltd. v. CC, Kolkata were highlighted to support this position. It was argued that for refunds before 14-7-2006, unjust enrichment principles should not be applied. 3. A conflicting view was presented in the case of CC, Ahmedabad v. Reliance Industries Ltd., where it was held that regardless of the amendment to Section 18, customs duty refunds are subject to unjust enrichment principles. This decision was based on the Supreme Court's ruling in M/s. Sahakari Khand Udyog Mandal Ltd. v. Commissioner, emphasizing that unjust enrichment is rooted in equity and applies irrespective of legislative provisions like Section 11B. The Tribunal referred to the Bombay High Court's decision in M/s. Bussa Overseas and Properties Pvt. Ltd. to support the application of unjust enrichment to all types of refunds. 4. Despite subsequent judgments not acknowledging the decision in the case of M/s. Reliance Industries Ltd., which supported the application of unjust enrichment, it was noted that there are conflicting views on the matter. Due to this, the issue was referred to the Hon'ble President for the constitution of a Larger Bench to resolve whether refunds from finalization of provisional assessment before 13-7-2006 are subject to unjust enrichment. *(Pronounced in Court on 27-5-2008)*
|
