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TMI Blog2011 (5) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) has held that the provisions of principles of unjust enrichment as introduced w.e.f. 13.7.2006 in Section 18 of the Customs Act are not applicable on the facts of the present case. The Commissioner (Appeals) has also held that that the adjudication order does not contradict the certification of a Chartered Accountant regarding unjust enrichment and not passing on the burden of duty and allowed the appeal filed by the importer. 4. The brief facts of the case are that the respondents made import of goods and the Revenue ordered provisional assessments and the assessments were finalised in July 2007. In pursuance to the finalisation of assessments, the respondents filed six refund claims. The adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ichment are applicable. Relying upon the above decisions, the contention of the Revenue is that, on the facts of the present case, as the assessments were finalised after the amendment to Section 18 of the Customs Act the principles of unjust enrichment are applicable. The Revenue fairly submitted that whether the burden of duty has been passed on, the presumption is that the same has been passed on, however, it is a rebuttable presumption. The Revenue also fairly submitted that this issue was not considered properly by the adjudicating authority as well as by the Commissioner (Appeals). 7. The respondents submitted that in the present case the assessment relates to the period prior to the amendment to Section 18 of the Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that the assessments were finalised after the amendment and therefore the ratio of the above decision is not applicable on the facts of the present case. In the case of Tribunal s larger bench decision in Hindustan Zinc Ltd. (supra) relied upon by the respondent, the Tribunal after taking into consideration that the assessments were finalised prior to the amendment held that the principles of unjust enrichment are not applicable. 10. On the contrary, we find merit in the contention of the Revenue, as the Tribunal in the case of CC, Ahmedabad vs. Hindalco Industries Ltd. (supra) relied upon by the Revenue, in a case where the assessments were finalised after the amendment to Section 18 of the Customs Act, held that the princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals), we find that the authorities below have not gone into the issue in the perspective. In view of this, we find that the matter requires reconsideration on this issue by the adjudicating authority. The impugned order is set aside and the appeal is allowed in the following terms:- (i) On the facts and circumstances of the present case, the principles of unjust enrichment are applicable; (ii) That the burden of duty has been passed on is a rebuttable presumption and the matter is remanded to the adjudicating authority to decide this issue afresh after affording an opportunity of hearing to the respondents. Both sides are at liberty to produce evidence in support of their claim. (iii) The adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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