2021 (11) TMI 128 - HC - Customs

Provisional assessment of duty - Refund of duty paid - Applicability of Section 18 of Customs Act - no difference between the provisional assessment and the final assessment - failure on the part of importer to prove that the excess duty had not been passed on to their customers - applicability of principles of unjust enrichment - HELD THAT - The Co-ordinate Bench of this Court in MANGALORE REFINERY AND PETROCHEMICALS LTD. VERSUS COMMISSIONER OF CUSTOMS, MANGALORE 2015 (5) TMI 768 - KARNATAKA HIGH COURT has held that Section 18 of the Act, which deals with the provisional assessment of duty, opens with a non-obstante clause and the only exception being Section 46. It provides for provisional assessment and a proper officer directing the assessee to pay the duty leviable on such goods, be paid on provisional assessment, subject to the condition that the assessee shall pay the duty as may be finally assessed. In terms of sub-section (2), the obligation is cast on the Revenue to make refund of the excess duty paid and collected. Section 27 of the Act provides for claiming of refund of duty which relates to a claim for refund of duty or interest paid by the assessee or borne by him in a case not falling under the provisional assessment. The provision of unjust enrichment was conspicuously missing in Section 18 of the Act - it has been further held in the said case, that the refund claims consequent upon finalization of provisional assessment does not attract the bar of unjust enrichment for the period prior to the amendment of 2006. The argument of the revenue that the refund claim made by the importer was not on account of finalization of the provisional assessment but on account of excess payment of customs duty for the wrong invoices raised from the supplier was rejected for the reason that the refund claim originally made by the importer on 21.04.1997 was returned to them by the departmental officers with the direction to re-file it after the finalization of the provisional assessments. Once an assessment is provisional, it is provisional for all purposes - the arguments advanced by the revenue that Section 18 of the Act is not at all applicable to the facts of the case is only misconceived, having directed the importer to re-file the refund claim subsequent to finalization of the provisional assessment now cannot take a stance that there is no difference in provisional assessment and final assessment. It is the specific case of the importer that excess duty has been paid at the time of provisional assessment and the same was exhaustively examined by the authorities as well as the CESTAT in the first round of litigation and it is only on the doctrine of unjust enrichment, the refund claim was rejected by the authorities. Since the importer has taken a ground that the principles of unjust enrichment will not be applicable prior to 2006. The substantial question of law is answered in favour of the assessee and against the revenue.

Summary

Issues Involved:
1. Entitlement to refund of duty paid on import of goods.
2. Application of the doctrine of unjust enrichment.
3. Applicability of Section 18 of the Customs Act, 1962.
4. Difference between provisional and final assessment.
5. Impact of amendments to Section 18 effective from 13.07.2006.

Issue-wise Detailed Analysis:

1. Entitlement to Refund of Duty Paid on Import of Goods:
The importer, engaged in the manufacture of telecommunication equipment, claimed a refund of excess customs duty paid on various bills of entry during 1995-96. The refund claim was initially rejected by the Deputy Commissioner of Customs on merits and limitation grounds. However, the Appellate Authority allowed the refund under Section 27 of the Customs Act, 1962, but credited it to the Consumer Welfare Fund based on the principle of unjust enrichment.

2. Application of the Doctrine of Unjust Enrichment:
The main contention was whether the refund claim was hit by the doctrine of unjust enrichment. The Commissioner (Appeals) concluded that the importer had passed on the duty burden to their customers, thereby invoking the unjust enrichment principle. However, the CESTAT, relying on the case of M/s. Mangalore Refinery & Petrochemicals Ltd., held that the doctrine of unjust enrichment would not apply to refunds consequent upon the finalization of provisional assessments for the period before the 2006 amendment.

3. Applicability of Section 18 of the Customs Act, 1962:
The revenue argued that Section 18 was not applicable as there was no difference between provisional and final assessments. However, the court noted that Section 18, which deals with provisional assessment, allows for refunds of excess duty paid upon final assessment. The amendments to Section 18 effective from 13.07.2006, which introduced the unjust enrichment clause, were not applicable to the period in question (1995-96).

4. Difference Between Provisional and Final Assessment:
The court emphasized that once an assessment is provisional, it remains so for all purposes until finalized. The refund claim was initially returned by the authorities, directing the importer to re-file post-finalization of provisional assessments. The court rejected the revenue's argument that there was no difference between provisional and final assessments, affirming that the excess duty paid at the time of provisional assessment was subject to refund upon finalization.

5. Impact of Amendments to Section 18 Effective from 13.07.2006:
The court clarified that the amendments to Section 18, which incorporated the unjust enrichment principle, were not applicable to the period before 2006. Therefore, the refund claims for the period 1995-96 were not subject to the unjust enrichment bar.

Conclusion:
The court concluded that the refund of excess duty paid by the importer was not barred by the doctrine of unjust enrichment for the period before the 2006 amendment to Section 18. The substantial question of law was answered in favor of the assessee, and the appeal by the revenue was dismissed. The importer was entitled to a refund in cash, excluding the CVD component already availed as CENVAT credit.