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2005 (2) TMI 410 - CESTAT, BANGALOREExtract: .......e not applicable. The refund is due to the appellants, which shall be granted. The matter is remanded for that purpose. The original authority shall hear the appellants and finalise the refund and grant the same within four months from the receipt of this order. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
Issues involved: Challenge to correctness of OIA No. 65/2002-Cus. regarding refund claim rejection based on tariff value reduction and unjust enrichment applicability in provisional assessment.
Issue 1 - Refund claim rejection based on tariff value reduction: The appellants challenged the rejection of their refund claim due to the reduction of Tariff value by the Government of India. They argued that the claim should be considered regardless of the Tariff change, and unjust enrichment should not apply to provisional assessments. Issue 2 - Applicability of unjust enrichment in provisional assessment: The Tribunal found merit in the appellants' submission, citing the Madras High Court case and various Tribunal cases which held that unjust enrichment does not apply to refunds arising from finalization of provisional assessments. The plea regarding failure to indicate duty amount in the invoice was also considered valid based on supporting judgments. Issue 3 - Incidence of duty not passed on to customers: The plea that duty incidence was not passed on to customers due to goods being sold at a price lower than landed cost, and loss being similar to duty paid, was supported by relevant judgments. The Tribunal concluded that both orders were unjust, and the refund claim should be granted without applying unjust enrichment provisions. The impugned order was set aside, and the matter was remanded to the original authority to reconsider the refund claim without unjust enrichment provisions. The Tribunal emphasized that refunds should be granted when assessments are finalized, and the provisions of unjust enrichment do not apply in such cases. The original authority was directed to finalize the refund within four months from the receipt of the order.
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