2015 (4) TMI 729 - AT - Customs

Denial of refund claim - whether unjust enrichment is applicable or otherwise - finalization of provisional assessment. - Held that - The appellant seeking refund of Revenue deposit paid during provisional assessment. On finalization of bill of entry there is no variations in the custom duty which was assessed provisionally and therefore the amount of 1% Revenue deposit become refundable. On the issue whether this refund has to pass through the test of unjust enrichment, I agree with Ld. A.R., that this particular refund arises out of the final assessment of the bill of entry and correctly governed by Section 18 of Customs Act, 1962. Prior to 2006 there was no explicit provision of unjust enrichment in respect of refund payable on the final assessment under Section 18 of Customs Act, 1962, however, w.e.f. 13/7/2006 subsection 5 was inserted under Section 18 - refund of 1% revenue deposit undoubtedly payable under Section 18. Therefore any refund which is arising out of final assessment of bill of entry, either of revenue deposit or excess payment of duty, the bar of unjust enrichment is applicable. Bar of unjust enrichment is applicable to the refund of revenue deposit also by virtue of subsection 5 of Section 18 of the Customs Act, 1962 after 12/7/2006 - unjust enrichment is applicable in the present case. However, on going through a copy of balance sheet, it appears that an amount of ₹ 13,42,143/- is shown under head of 'loan and advances'. This needs to be verified with other account ledgers, etc. for the period from date of deposit till disposal of refund. Therefore, I remand the matter to original adjudicating authority to decide the refund claim a fresh after ascertaining the factual position that the incidence of amount of refund has not been passed on to any other person - Decided in favour of assessee.

Summary

Issues:
1. Applicability of unjust enrichment in the case of refund of Revenue deposit made during provisional assessment.

Analysis:
The appeal was against the Order-in-Appeal upholding the Order-in-Original rejecting a refund claim of &8377; 28,99,492/- for 100 bills of entry due to unjust enrichment. The appellant argued that unjust enrichment doesn't apply to Revenue deposit refund as it's not custom duty, citing relevant case laws. The Revenue contended that post-2006, Section 18(5) of the Customs Act mandates unjust enrichment for all refunds, including Revenue deposit. The Tribunal agreed with the Revenue, emphasizing Section 18(5) which explicitly includes Revenue deposit refunds under unjust enrichment provisions.

The Tribunal noted that prior to 2006, there was no explicit provision for unjust enrichment in final assessment refunds under Section 18. However, post-2006, Section 18(5) was inserted, making unjust enrichment applicable to all refunds, including Revenue deposit. Referring to a specific case judgment, the Tribunal highlighted the substantive nature of the amendment, emphasizing that unjust enrichment applies to Revenue deposit refunds post-2006. The Tribunal remanded the case to verify if the refund incidence was passed on, underscoring the need to ensure compliance with unjust enrichment principles before granting the refund.

In conclusion, the Tribunal held that unjust enrichment applies to Revenue deposit refunds post-2006 as per Section 18(5) of the Customs Act. The case was remanded for verification of refund incidence passing and compliance with unjust enrichment principles before making a fresh decision on the refund claim.