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TMI Blog2007 (5) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... centrate from different importers. Internationally, copper concentrate is traded on the basis of prices ruling at London Metal Exchange (LME). The price of the concentrate is arrived after accounting for the copper, gold and silver contents in the concentrate. The provisional invoice is raised on the basis of load port assays but the final price is determined after the assays conducted at the port of discharge based on the price prevalent in the LME on a pre-determined date based on the convenant of the contract between the buyer and the seller. At the time of import, the seller issues only a provisional invoice and the goods are provisionally assessed based on such invoice. The system of raising a final invoice by the seller and final assessments of the Bills of Entry based on such final invoices are not in dispute. In all the Bills of Entry, the Adjudicating Authority has accepted the price mentioned in the final invoice and has finally assessed the bills of entry on the basis of such invoices. 1. Appeal No. C/36/07 pertains to Bill of Entry No. F.017/05-06 dated 15-4-2005 was filed by the appellants and was finally assessed by the Authorities on 1-3-2006 against which a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority to sanction the refund claim and nothing more than that. 4. The Ld. SDR on the other hand submits that the appeal filed by the Revenue is against the sanctioning of the Refund to the Appellant. It is his submission that the bar of unjust enrichment would apply even to the refund arising out of the provisional assessments getting finalized. He relies upon the decision of the Hon ble High Court of Judicature at Bombay in the case of M/s. Bussa Overseas and Properties Pvt. Ltd. v. Union of India as reported at 2003 (158) E.L.T. 135 (Bom.) = 2003 (9) LCX 250. It is his submission that this judgment of the Hon ble High Court has been upheld by the Hon ble Supreme Court [2004 (164) E.L.T. A177 (S.C.)]. As regards the appeal filed by the appellant, it is his submission that since the appellants have preferred the refund claim subsequently after the amendment to Section 18, they are governed by the provisions of Section 18 and hence they have to justify their claim regarding the non passing of the incidents of duty. He relies upon the judgment of the Tribunal in the case of C.C., Ahmedabad v. M/s. Cymex Time Ltd. in Final Order No. A/309/ WZB/Ahmedabad/06 dated 16-11-2006. 5. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may, where the duty finally assessed is in excess of the duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal to twice the amount of the excess duty. Subsequently, in the Finance Act, 2006, following sub-sections were inserted w.e.f. 14-7-2006. 3. The importer or exporter shall be liable to pay interest, on any amount payable to the Central Government, consequent to the final assessment order under sub-section (2), at the rate fixed by the Central Government under Section 28AB from the first day of the month in which the duty is provisionally assessed till the date of payment thereof. 4. Subject to the sub-section (5), if any refundable amount referred to in clause (a) of sub-section 2 is not refunded under that sub-section within three months from the date of assessment of duty finally, there shall be paid an interest on such unrefunded amount at such rate fixed by the Central Government under Section 27A till the date of refund of such amount. 5. The amount of duty refundable under sub-section 2 and the interest under sub-section 4, if any, shall instead of being credited to the Fund, be paid to the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 416] and (ii) CCE v. TVS Suzuki Ltd. [2003 (156) E.L.T. 16 = 2003 (7) SCC 24] as contrasted to the Constitution Bench decision in Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.) = 1997 (5) SCC 536]. The three-Judge Bench which considered the correctness of the aforesaid two decisions (of three-Judge Bench) has in CCE, Mumbai-II v. Allied Photographies India Ltd. [2004 (166) E.L.T. 3 = 2004 (4) SCC 34] held that the judgment in Sinkhai Synthetics s case (supra) was per incuriam (para 14 at page 52] and approved the decision in the later case i.e. TVS Suzuki s case (supra). The three-Judge Bench has also taken the same view, as was taken by the Tribunal, to the effect that the doctrine of unjust enrichment is not applicable to the provisional assessment even after the finalization thereof. The point in issue in the present case is, thus squarely covered by the three-Judge Bench decision in Allied Photographics case [2004 (166) E.L.T. 3 = 2004 (4) SCC 34]. In view of this, the appeals are dismissed and the order passed by the Tribunal is affirmed. No costs. 6. It can be noted from the above reproduced judgment of the Hon ble Supreme Court that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant are required to prove there is no unjust enrichment. From the records, which are produced before me, it is seen that the appellants had not produced any kind of evidence before me or the lower authorities as regards the fact that they had not passed on the said amount to the ultimate customers. To my mind, if the appellants are able to produce evidence that they had not passed on this amount to their customers, they may be eligible to claim the refund of the amount from the authorities. In the absence of any evidence, I am not able to come to any conclusion on this issue. Hence, the impugned order, which rejects the claim of Rs. 10,561/- in respect of bill of entry No. F. 152/05-06 dated 21-9-2005 is set aside and issue is remanded back to the lower authorities to consider the evidences that may be produced by the appellant to justify their claim of non-passing of incidences of the duty. 10. Since, I have already held that the refund claim in respect of two bill of entries are allowable to the appellant, the department s appeal is dismissed, as the decisions of Hon ble Supreme Court are squarely cover the issue in favour of the assessee. 11. Accordingly, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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