2014 (2) TMI 286 - AT - Customs

Denial of refund claim - Finalization of provisional assessment - Unjust enrichment - Held that - consequence arising out of finalization of provisional assessment if results in refund, that shall be allowed suo moto subject to pre amendment and post amendment provision relating to test of unjust enrichment. If the provisional assessment relating to 209 bills finalized by an express order, there shall be no dispute at all since that can be verified from the order assessing finally. But no such order was placed before us to show in clear terms as to finalization of provisional assessment relating to 209 Bills of Entry - appellant failed to show from order dated 10.3.04 that learned commissioner assessed finally 209 bills of entry by that order. Therefore, in all fairness, the matter is remitted to learned adjudicating authority to verify with the co-operation of the appellant as to whether those 209 bills of entry reached to finality by the order dated 10.3.2004 or any other order finalizing provisional assessment was passed - Therefore, appeal is remanded to learned Adjudicating Authority - Decided in favour of assessee.

Summary

Issues:
1. Dispute on finalization of provisional assessment and consequences for refund claim.
2. Applicability of unjust enrichment test to refund claim.
3. Verification of finalization of provisional assessment for 209 bills of entries.

Analysis:
1. The judgment revolves around the dispute concerning the finalization of provisional assessment and its implications on refund claims. The Appellant argues that a refund claim arises upon finalization of provisional assessment, citing precedents such as the ABB Ltd. case and the Larger bench decision in the CCE vs. Panasonic Battery India Co. Ltd. However, the Revenue opposes this stance, leading to a disagreement on the factual finalization of the assessment.

2. The Revenue contends that the finality of the provisional assessment for 209 bills of entries is unclear, as the order passed by the Commissioner (Imports) Mumbai on 10.03.2004 only addressed the valuation aspect of the import and not the completion of provisional assessment. This lack of clarity further complicates the matter at hand.

3. The Tribunal emphasizes the importance of verifying the finalization of the provisional assessment for the 209 bills of entries. While acknowledging that a refund should be allowed if the finalization leads to such an outcome, the Tribunal stresses the need for clarity and evidence regarding the final assessment order. Since the Appellant failed to demonstrate conclusively that the assessment was finalized, the matter is remitted to the Adjudicating Authority for further verification and cooperation with the Appellant to establish the finality of the assessment.

4. The Tribunal instructs the Adjudicating Authority to determine whether the 209 bills of entries reached finality through the order dated 10.03.2004 or any subsequent finalization order. If the finalization is confirmed, the refund may be granted in accordance with the applicable legal provisions and precedents cited. However, if the finalization remains uncertain, the Adjudicating Authority is directed to issue an appropriate order based on the findings.

5. In conclusion, the appeal is remanded to the Adjudicating Authority for a thorough examination and verification of the finalization of the provisional assessment for the 209 bills of entries. The Tribunal's decision underscores the significance of establishing clarity and evidence in matters of refund claims arising from provisional assessments, ensuring adherence to legal principles and precedents in such cases.