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TMI Blog2013 (8) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... sional assessment. Against such application, department issued notice to the appellant to show cause why refund application shall not be rejected on the ground of unjust enrichment. Order dated 16.7.1998 was passed rejecting refund claimed as above and that was credited to the Consumer Welfare Fund holding that the refund was barred by doctrine of unjust enrichment. 2. Against rejection of refund as above, the matter travelled up to Apex Court and ultimately the appellant succeeded by Apex court order on 27.04.2006 to get refund and such refund was sanctioned to the appellant on 13.07.2007 disallowing interest claimed on such refund on the ground that payments were made by appellant under provisional assessment and such payment does not am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 13.6.2006 after Apex Court Judgment (at page 58 to 60 of appeal folder) and copies of relevant documents submitted in response to department's letter No. VIII(ICD)/TKD/Refund/Misc/2006/14619 dated 22.6.2006 entitled the appellant to interest on refund lawfully for which no interest can be denied to be paid. (ii) Refund having been paid by Govt under Section 27 of the Customs Act, 1962 and such payment delayed, interest thereon under Section 27A of the said Act is due to the appellant to be paid. (iii) The explanation appearing under Section 27A mandates that the order of higher courts is against an order passed by lower authority and order of higher court is deemed to be an order under Section 27(2) of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interest on refund for the earlier period under dispute. (iv) When there was no interest payment provision [as was incorporated in subsection (4) in Section 18 of the Customs Act 1962] prior to 13.7.2006 and payment of interest issue was not before Apex Court in the Civil Appeal of appellant, no interest is payable to the appellant. Entertaining claim of interest of appellant shall be contrary to the Apex Court order dated 27.4.2006. 7. Heard both sides and perused the record. 8.1 There is no dispute that refund in this case arose upon finalisation of provisional assessment under Section 18 of Customs Act, 1962 and the appellant ultimately succeeded against applicability of bar of unjust enrichment before Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arent that sub-sections (3) and (4) relate to liability to pay interest or entitlement to claim interest consequent upon final assessment order. However, sub-section (5) is the material amendment which indicates that the Proviso appearing below sub-section (2) of Section 27 of the Act has now been incorporated as a part of Section 18 of the Act. On a plain reading the distinction between Section 18 as it stood prior to amendment i.e. upto 12-7-2006 and subsequent to the amendment i.e. with effect from 13-7-2006 becomes apparent. The difference is stark and revealing and it is not possible to agree with the contention of revenue that such amendment has to be understood as clarificatory in nature. This is more so, when one reads the amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in excess of the finally assessed duty can be considered to be clarificatory provisions and in the same vein the newly inserted sub-section (5) deserves consideration. Thus in effect upto 12-7-2006 no provision existed in Section 18 of the Act which would permit revenue to invoke principles of unjust enrichment in relation to duty paid in excess, found to be so, upon finalization of provisional assessment under Section 18 of the Act. 20. Hence, the reference to provisions of Section 27 of the Act which generally deals with claim for refund of duty cannot be of any assistance to the revenue. Similarly the definition of the term assessment under Section 2(2) of the Act also cannot help the revenue in light of the specific provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory provision for payment of interest prior to 13.7.2006, against refund under Section 18(2) of the Act. Payment of interest is inconceivable. Appellants reliance on judgement of Apex Court in the case of ITC Ltd 2005 (179) ELT 15 (S.C) relates to payment of interest on pre-deposit by virtue of draft Circular of CBE&C. But appellants case is not the case of refund of pre-deposit. Therefore that decision is not profitable to it. Appellants further reliance was on Ampro Industries Case reported in 2012 (278) ELT 306 (A.P) to submit that interest was payable against refund arising out of finalisation of provisional assessment. In that case refund was granted by order dated 14.2.2006 by Commissioner (Appeals)- [Ref: Para-3 of Judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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