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TMI Blog2011 (4) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... t is subject to provision of unjust enrichment - Decided against the assessee - C/374/10 - - - Dated:- 29-4-2011 - Hon ble Dr. P. Babu, Member (Technical) Appellant : Shri Samir Kumar Sinha, G.M. Respondent ; Shri R.S. Srova, JDR Per: Dr. P. Babu: M/s. Atlantic Shipping Pvt. Ltd. filed a refund claim for Rs.4,85,491/- after the customs duty was provisionally assessed at the time of coastal conversion of the vessel for bunkers. This was purported to be excess customs duty. On finalisation of assessment, the original adjudicating authority sanctioned the refund claim but ordered to be credited the amount to consumer welfare fund. Against this Order-in-Original the appellant went to the Commissioner (Appeals) who uphel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pay duty on the entire quantity of Bonded stores carried by the ship, it is open to them to take the estimated quantity out of the Bonded stores and pay duty on the same. The remaining quantity may remain on board such vessels in terms of Section 86 of the Customs Act 1962. The duty on stores like alcoholic liquor, cigarettes, etc. (other than liquid cargo like diesel, furnace oil etc.) may be recovered on quantity likely to be consumed during coastal run, and remaining quantity may be kept in bond under customs seal as per procedure laid down under Imported Stores (Retention on Board) Regulations, 1963. The Steamer Agents are required to file the Bill of Entry as soon as the conversion takes place, and the assessment would be complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.07 issued by Bankers DnB NOR Bank ASA, Singapore. 5. The provisions of refund are governed by Section 27(1) which reads as follows: SECTION 27. Claim for refund of duty. (1)?Any person claiming refund of any duty and interest, if any, paid on such duty (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n passed on to the customers of the consumers and it had been actually borne by the assessee itself and then alone, perhaps a refund application would result in flow of some amount to the assessee. But in any other situations, even if it results in a refund of duty, it would flow to the fund and not to the assessee. 7. The original adjudicating authority had given a clear finding that no records or books of accounts especially the ledgers, balance sheets and schedules to the balance sheet or annual report of M/s. Great Elephant Corporation have been produced by the party. No evidence or cast analysis has been produced in proof that the lump sum freight charged by the M/s. Great Elephant Corporation is exclusive of duty paid. Shri Samir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /exporter/buyer has not passed on incidence of the duty to another person. * If imports are made by individual for his personal use. * In case of Refund of export duty, if any, u/s 26 of Customs Act. * In case of Duty drawback payable to exporter u/s 74 or 75 of Customs Act. 9. In Bussa Overseas Vs. UOI reported in 2003 (158) ELT 135 (Bom. HC DB), it has been held that even in case of customs, refund after provisional assessment is subject to provision of unjust enrichment. It was also held that what is paid at the time of provisional assessment is customs duty and not only deposit same view in CCE Vs. Godavari Fertilisers reported in 2006 (202) ELT 511 (CESTAT). 10. On explicit analysis, the various contentions of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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