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2015 (6) TMI 616 - AT - CustomsDenial of refund claim - whether the refund arising out of finalization of provisional assessment on the imports of the appellants which was sanctioned and credited to the Consumer Welfare Fund on the ground of unjust enrichment is applicable or not - Held that - finalization of provisional assessment was completed in the year 1999 much before the insertion of sub-section (5) to Section 18 of Customs Act. The decisions relied by the learned AR for Revenue is not applicable to the present case as the case of Sahakari Khand Udyog Mandal Ltd. (2005 (3) TMI 116 - SUPREME COURT OF INDIA) deals with refund arising out of excess excise duty paid. Similarly, the case of Scientific Instruments Co. Ltd. (2014 (12) TMI 530 - MADRAS HIGH COURT) relates to finalization of provisional assessment completed on 16.7.2009 after the amendment of Section 18 of the Customs Act. The Hon ble High Court of Delhi in the appellant s own case has considered the case of Bussa Overseas and Property Pvt. Ltd. (2003 (11) TMI 590 - SUPREME COURT). - unjust enrichment clause shall not apply for finalization of the provisional assessment for the cases prior to 13.7.2006. - appellants are eligible for refund of CVD and BCD amounting to ₹ 7,75,157/- and is not covered by unjust enrichment clause as the period involved is prior to 13.7.2006 - Decided in favour of assessee.
Issues:
1. Finalization of provisional assessment for imported goods. 2. Eligibility for refund of excess CVD and BCD. 3. Application of unjust enrichment clause. 4. Interpretation of Section 18 of the Customs Act, 1962. 5. Retroactive effect of the unjust enrichment clause. Analysis: 1. Finalization of Provisional Assessment: The appeal stemmed from the finalization of provisional assessment by M/s. Indian Oil Corporation Ltd. for imported goods, leading to a refund of excess CVD and BCD amounting to Rs. 7,75,157. The dispute arose when the amount was credited to the Consumer Welfare Fund due to concerns over unjust enrichment. 2. Eligibility for Refund: The appellant argued that the unjust enrichment clause introduced under Section 18 of the Customs Act, 1962, effective from 13.7.2006, should not apply retroactively to their case finalized in 1999. The appellant cited a Delhi High Court decision in their favor (2012 (282) ELT 368 (Del.)) to support their contention. 3. Application of Unjust Enrichment Clause: The Revenue, however, contended that the unjust enrichment clause was rightly invoked as the refund was sanctioned in 2004, falling under the purview of Section 18. They relied on various judgments including Bussa Overseas and Properties Pvt. Ltd. Vs. Union of India (2004 (164) ELT A177 (SC)) to support their argument. 4. Interpretation of Section 18: The Tribunal analyzed the provisions of Section 18 of the Customs Act, particularly sub-section (5)(a), which stipulates the conditions for refundable amounts to be paid to the importer or exporter instead of being credited to the Fund, if certain criteria are met. 5. Retroactive Effect of Unjust Enrichment Clause: The Tribunal emphasized that the finalization of provisional assessment in 1999 predates the insertion of sub-section (5) to Section 18 in 2006, rendering the unjust enrichment clause inapplicable to the appellant's case. Citing the Delhi High Court's decision and Supreme Court precedents, the Tribunal ruled in favor of the appellant, allowing the refund without the application of the unjust enrichment clause. In conclusion, the Tribunal set aside the impugned order, allowing the appeal and granting the appellants the refund of CVD and BCD amounting to Rs. 7,75,157, as the unjust enrichment clause was deemed inapplicable to their case due to the retrospective timeline involved.
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