9911796707
TMI Blog2011 (6) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... r Assessee. For Respondent: Shri R. Nagar, SDR for the Revenue. Per: Archana Wadhwa: Being aggrieved with the order passed by Commissioner(Appeals), the Revenue has filed the present appeal. We have heard Shri R. Nagar, ld.SDR appearing for the Revenue and Shri Jigar Shah, ld.Advocate appearing for the respondents. 2. Brief facts of the case are that the appellant had filed Bill of Entry No.SBY/57-A/2003-2004, dt.14.5.03 for assessment of fuel and provisions consumed by a tug TOPAZ arrived from Singapore under their Agency during its run for towing a dead vessel SAGAR PRABHAT from Vishakhapatnam to Alang. As the tug used for the subject operation was not treated by the Assessing Officer as foreign going vessel , duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the incidence of duty for which the refund was being claimed, had been actually borne by them and not passed on to any other person. 3. Being aggrieved with the order passed by the said authority, the respondents filed appeal before Commissioner(Appeals) on the following grounds: a) Provisional assessment having been made prior to 13.7.06, the provisional unjust enrichment was not applicable to the impugned refund claim. Case laws viz. CC Vs. Hindalco Industries Ltd. 2008 (231) ELT 36 (Guj.) and Larger Bench decision in CC Kandla Vs. Hindustan Zinc Ltd. 2009 (235) ELT 629 (Tri-LB), were relied in support. b) Even if the provisions of unjust enrichment was held to be applicable, since the goods in question on which duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962 were not applicable to refunds arising out of finalization of provisional assessments made prior to 13.7.06. Since there is no dispute in these appeals that the provisional assessment of the subject Bill of Entry under Section 18 of the Act were made prior to 13.7.06 the order impugned in this appeal which is contrary to the law laid down in this regard by the higher appellate foras in the binding judgments referred to hereinabove, has to be struck down. 5. Revenue in their memo of appeal, has not disputed the applicability of the decision relied upon by Commissioner(Appeals), but has simply submitted that the said decision has not been accepted by the department and appeal against the same stand filed. It is fairly con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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