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TMI Blog2013 (5) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner passed the order accepting the declared transaction value and the refund claim had been filed within one year. Therefore, following the judgment of Commissioner of Customs, Kandla Vs. Hindustan Zinc Ltd.[2009 (2) TMI 100] principles of unjust enrichment are not applicable to this refund claim. Since this is the only ground on which the rejection of the refund claim has been upheld. Thus, the impugned order is not sustainable and set aside. Appeal is allowed. - C/570/2008-CU[DB] - - - Dated:- 13-3-2013 - Ms. Archana Wadhwa and Mr. Rakesh Kumar, JJ. For the Appellant: Sh. H. L. Tiku, Sr. Advocate and Ms. Yashmeet Kaur - Advocate For the Respondent: Sh. V.P. Batra, DR JUDGEMENT Per Rakesh Kumar:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected by the Assistant Commissioner vide order-in-original dtd. 15.11.2007 on the ground of unjust enrichment holding that the appellant have failed to furnish evidence that the incidence of duty whose refund is being claimed by them, had not been passed on to their customers. On appeal being filed before the Commissioner (Appeals), the above order passed by the Assistant Commissioner was upheld vide order-in-appeal No. 29/408. The Commissioner (Appeals) also held that the appellant have failed to demonstrate that the duty whose refund is being claimed had not been recovered from their customers. Against this order of the Commissioner (Appeals), this appeal has been filed. 3. Heard both the sides. 4. Sh. H. L. Tiku, Advocate, the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the rejection of refund claim on the ground of unjust enrichment is not sustainable. 5. Sh.V. P. Batra, the learned Departmental Representative, defended the impugned order by reiterating the findings of Commissioner (Appeals) and pleaded that there was no provisional assessment in this case, that this is a simply a case of excess payment of duty which had become refundable when the dispute regarding assessable value was decided by the Assistant Commissioner on 20.01.2004 in favour of appellant company, that the refund of the extra duty paid was, therefore, governed purely by the Provisions of Section 27 of the Custom Act, 1962 and was subject to the doctrine of unjust enrichment and that since the appellant have not been able to prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted by the foreign Co. and the technical data and the technical guidance furnished by the foreign company, the Indian company shall pay to the foreign company, a technical know-how fee of Japanese Yen 10,00,000/- for each type of product and Royalty @ 3% on the net ex-factory price, means the selling price of each product sold by the party minus (a) the landed cost of imported parts and material imported by the Indian company irrespective of the source of imports (b) the cost of standard bought out components and (c) excise duty imposed by the Government of India included in the ex-factory price. In addition to the Technical Assistance Agreement, the foreign company has entered into a Capital Investment Contract dtd. 06.04.2001. As per thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable to this refund claim and if so whether the appellant have discharged the burden of proof cast on them of proving that they have borne the incident duty whose refund is being claimed by them. However, the second question is required to be answered only if the answer to the 1st question as in the affirmative and it is held that the principle of unjust enrichment is applicable to this refund claim. 9. Though Section 27 of the Customs Act, 1962 was amended w.e.f. 01.08.1998 providing that in case of provisional assessment under Section 18, the limitation period of one year or six months, as the case may be, shall be computed from the date of adjustment of duty often the final assessment, the provisions of Section 18 relating to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 962 w.e.f. 13.07.2006. Same view has been taken by Hon ble Delhi High Court in case of Commissioner of Custom Vs. Indian Oil Corporation reported in 2012 (282) ELT-368(Del.) holding that prior to insertion of sub section (3) (4) (5) to Section 18 w.e.f. 13.07.2006, Section 27 and principles of unjust enrichment were not applicable to refund of duty arising on finalization of provisional assessment. In the present case while the 1% extra duty had been paid during 2001-2002 to 2003-2004, the refund claim of this extra duty deposit had arisen on 20.01.2004 when the Assistant Commissioner passed the order accepting the declared transaction value and the refund claim had been filed within one year on 20.01.2005. Therefore, following the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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