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TMI Blog2014 (5) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... orted another consignment of similar goods vide Bill of entry No.201/99 dated 1.1.99 and same were also detained for further inquiry. (iii) The detained goods were released provisionally on execution of the requisite bonds and on payment of differential duty of Rs.10,00,000/- (paid vide TR-6 Challan No.6625/99 dated 5.2.99) and Rs.7,50,000/- (paid vide TR-6 Challan No.7752/99 dated 13.3.99 & 7753/99 dated 13.3.99) respectively and furnishing of Bank Guarantee of Rs.3,00,000/- for each Bill of entry. (iv) After conducting necessary inquiries, a Show Cause Notice No. VIII/10-11/COMMR/2000 dated 17.02.2000 was issued and the said case was adjudicated vide OIO No. 24/Commr/2001 dated 23.03.2001 by the Commissioner of Customs, Ahmedabad wherein differential Customs duty to the tune of Rs. 33,92,650/- in respect of goods covered under Bill of entry No. 6757/98 dated 27.10.1998 and Rs. 67,98,916/- in respect of goods covered under B/E No.201/99 dated 13.01.199 were confirmed. The amounts of Rs. 10 lacs and Rs. 7.5 lac already deposited in respect of B/E No. 6757/98 dated 27.10.1998 and B/E No.201/99 dated 13.01.199 respectively, were appropriated and adjusted towards the recovery of sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assets head' from year 2003 to 2009 instead of 'current assets head' and as such the incidence of duty stands passed. Since amount is not shown as 'receivable' the bar of unjust enrichment is applicable. In this appeal, the appellant has contended that they had shown all the deposits in this regard as "CUSTOM DEPOSIT" in the assets heads of the balance sheet as the same is still to be recoverable from the Custom Department and therefore, the application of principle of the unjust enrichment in this case is against the law. (vii) The amounts were not shown as deposit from year 1999 till 2003 because said amounts had been paid at different times and some were in the forms of Bank Guarantees en-cashed by the Department. Firstly these amounts were shown in respective times in the fixed deposit & closing stock of the company as assets and upon filing appeal and directions, they were shifted in the books of account to deposit columns. Further, certificate given by- Chartered Accountant that all the deposits are reflected as Custom Deposit in books of account of the appellant and the same is not collected from anyone, clarifies the position. 3. The Appellate Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on such duty paid by the importer, or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26;? (e) drawback of duty payable under sections 74 and 75. 6. Further I find that Rule 9B of Central Excise Rules was amended w.e.f. 25-6-1999 whereby the principles of unjust enrichment was made applicable in respect of refund arising out of finalization of provisional assessment. The provisions of sub-rule (5) of Rule 9B of the Central Excise Rules were parimateria to the provisions of Section 18 of the Customs Act, 1962 as regards the provisional assessment and finalization thereof. The Hon'ble Supreme Court in the case of Commissioner of Central Excise, Chennai v. T.V.S. Suzuki Ltd. - 2003 (156) E.L.T. 161 (S.C.) held that the provisions of sub-rule (5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o sub-rule (5) of Rule 9B. 7. I also find from the judgment cited by the counsel of the Appellant in the case of COMMISSIONER OF CUSTOMS, CHENNAI Versus SCIENTIFIC INSTRUMENTS CO. LTD 2012 (286) E.L.T. 261 (Tri. - Chennai) which was in the context of refund claims pertaining to period prior to 14.07.2006 wherein the Tribunal observed as under: 6.1 I have carefully considered the submissions from both sides and perused the records. The import has taken place in year 1995. There was amendment to Section 27 of the Customs Act, 1962 w.e.f. 1-8-1998 incorporating the provisions that consequent to finalization of provisional assessment, the assessee was required to make the claim of refund within one year from the date of finalization of the provisional assessment. There have been amendment to the provisions of Section 18 of the Customs Act, 1962 w.e.f. 14-7-2006 incorporating unjust enrichment provisions in respect of refund arising out of provisional assessment. 6.2 In the present case, the provisional assessment was finalized in year 2000. No doubt, the assessment was finalized holding differential duty was payable and the cash deposit made by the respondent was adjusted towards du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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