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TMI Blog2008 (10) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... nt would not be applicable? Whether in the facts and circumstances of the case, the Tribunal is justified in allowing the appeal by way of remand despite the admitted position that the respondent had not placed any evidence on record to prove that they had not passed the duty incidence on their customers? Held that:- In the light of the principles of law enunciated in COMMISSIONER OF CUSTOMS Versus HINDALCO INDUSTRIES LTD. [2008 (9) TMI 372 - HIGH COURT OF GUJARAT AT AHMEDABAD] which squarely applies to the issues raised and questions proposed in the present appeal, the appeal deserves to be dismissed. It is, accordingly dismissed. - Tax Appeal No. 13 of 2008 - - - Dated:- 16-10-2008 - D.A. Mehta and Abhilasha Kumari, JJ. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty was provisionally assessed at Rs. 12,80,20,507/-. The Basic Duty and the Education Cess component on Basic Duty amounting to Rs. 2,89,16,811/- was debits under DEPB Scheme. Rs. 9,91,03,696/- was paid in cash vide TR6 Challan No. 0046/2005-2006, dated 15-4-2005, which was realized on 16-4-2005. After the Bill of Entry was finally assessed on 1-3-2006, it was found that provisional assessment was done on the basis of provisional invoice No. 5040 dated 12-3-2005, whereas the final assessment was shown as per final invoice dated 27-7-2005. In the metal trade, it is common knowledge that final price of the concentrate is calculated by calculating the metal content and the prevalent price of such metal in the LME (London Metal Exchange) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to the Consumer Welfare Fund could not be sustained. This order has been confirmed by the Tribunal vide impugned order dated 18-5-2007, observing as under : (7). Coming to the factual matrix of the case, it is seen that the refund claim of Rs. 1,11,187/- and refund claim of Rs. 20,746/- arising out of finalization of bill of entry, which were finalized by the authorities on 1-3-2006 and 15-3-2006. This would indicate that the amount of the refund claim will be covered by the provisions of section 18 as they stood prior to amendment of said Section on 14-7-2006. Hon ble Supreme Court in the Case of CCE, Chennai v. TVS Suzuki Ltd. - 2003 (supra) held as under :- Shri Verma fairly concedes that the proviso introduced in sub-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act, 1962 ( the Act for short) refers to refund of duty paid pursuant to an order of assessment. The term assessment as defined by Section 2(2) of the Act includes provisional assessment and, therefore, any refund of duty, including refund of duty paid by an importer under provisional assessment, is governed by Section 27 of the Act. That provisional assessment is to be made by Adjudicating Authority, if any of the eventualities stated in Section 18(1) of the Act are shown to be existing. That an importer has no vested right to claim refund of duty paid under provisional assessment and unless and until the importer shows that the excess amount of duty paid by the importer under the provisional assessment has not been passed over to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 247 (S.C.) (HN) Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise and Customs - 2005 (181) E.L.T. 328 (S.C.) 6. Mr. Harin P. Raval, learned Assistant Solicitor General for the appellant-Revenue has brought to our notice a decision dated 24-9-2008 [2008 (231) E.L.T. 36 (Guj.)] rendered in Tax Appeal No. 638 of 2006 and allied matters (Commissioner of Customs v. Hindalco Industries Ltd.) wherein the same question arose for the consideration of the Court. The issue involved in the present appeal is similar to the issue involved in the appeals decided by the aforesaid judgment i.e. whether the provisions of Section 27 of the Act can be made applicable to refunds arising on finalisation of provisional assessments ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, on finalisation of assessment if any excess duty is found to have been paid at the time of provisional assessment Revenue is bound in law to make the refund without any claim being required to be made by an assessee. This would be the position in law upto 12-7-2006 and not thereafter. 22. In the circumstances, on none of the grounds pleaded can the revenue succeed. Therefore, principles of unjust enrichment found in Section 27 of the Act cannot be read into the provisions of Section 18 of the Act without considering and applying the amendment to Section 18 with effect from 13-7-2006. The Appeal is accordingly dismissed with no order as to costs . 8. In the light of the principles of law enunciated in judgment dated 24-9-2008 rend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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