9911796707
TMI Blog2013 (5) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... r for Motorcycles. Besides this, the appellant also entered into an Agreement with M/s. Shindengen Electric Manufacturing Co. Ltd., Japan under which the foreign company was to hold 22.6% of paid-up share capital of the appellant company. Since in view of the 2nd Agreement, the Appellant Company and their Japanese Supplier M/s. Shindengen Electric Manufacturing Co. Ltd., became related persons, in respect of imports by the appellant company from M/s. Shindengen Electric Manufacturing Co. Ltd., Japan, the appellant company was asked to provisionally pay extra duty deposit of 1% of the duty payable. The imports which are the subject matter of dispute were made during period 2001-2002 to 2003-2004 and as such during this period extra duty depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is also on record that during the period of dispute when 1% extra duty deposit had been paid by the appellant, the price of the final product in which the imported goods had been used had not been increased, rather it was lower, that the 1% extra duty deposit had been paid under protest and just because this payment was not reflected in the Appellant Company's Balance Sheet for the year 2003-2004 as amount receivable from the Custom Department, it cannot be concluded that the appellant had recovered the extra duty deposit from the customers that the amount, in question, was mentioned as receivable from the Custom Department in the Balance Sheet for the period subsequent to the filing of the refund claim i.e. in the balance sheet for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsels for the appellant plead that the assessment during the period of dispute i.e. 2001-2002 to 2003-2004 were provisional assessment and that the refund claim, in question, had arisen on account of finalization of the provisional assessment. We find that the fact that the assessments were provisional and the refund claim has arisen on account of order dtd. 20.01.2004 passed by the Assistant Commissioner (Special Valuation Branch) accepting declared assessable value, is clear from the facts narrated in para 2 of the Assistant Commissioner's Order dtd. 15.11.2007 which is reproduced below:- The case in brief is that M/s. Napino Auto & Electronics Ltd., are having Technical Assistance Agreement with M/s. Shindengen Electric Manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter No.EC.DEL.FID-II/296/ 06.04.3043/2001-02 dtd. 24.08.2001. The Indian Company and the Foreign Company are related in terms of Rule 2(2) pf the CVR, 1998 as the Foreign Company holds 22.6% of the equity shares in the Indian Company. Since the foreign supplier and the party, appeared to be related, the Bills of entry in question were assessed provisionally by taking Extra Duty Deposit of 1% of the duty payable. Subsequently the party submitted the relevant documents, as well as replies to the Special Valuation Branch (SVB)'s questionnaire. After considering the documents and the replies, the Assistant Commissioner (SVB) vide Order-in-Original No. 1/SR/2004 dtd. 20.01.2004 accepted the invoice values in respect of goods imported by the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2006 specifically making the refund of duty on finalization of Provisional Assessment subject to the principle of unjust enrichment. A Larger Bench of the Tribunal in the case of Commissioner of Customs, Kandla Vs. Hindustan Zinc Ltd., reported in 2009(235) ELT-629(Tri.-LB), following the judgment of Hon'ble Gujrat High Court in the case of Commissioner of Customs Vs. Hindalco Industries Ltd., reported in 2008 (232) ELT 36 (Guj.), has held that since Section 18 of the Customs Act was amended w.e.f. 13.07.2006 and such amendment has been held by Hon'ble Gujrat High Court as not a clarificatory amendment, unjust enrichment principle would not be applicable to the refund claim arisen on finalization of Provisional Assessment during period p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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