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TMI Blog2014 (12) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of a provision of refund, if an assessee has to claim as refund, under equity, he must prove that there is no unjust enrichment and that the liability had not been passed on to the customer. That being the case, refund is not automatic one merely on the score of provisional assessment being followed by final assessment and unless and until the assessee substantiates the claim backed by the proof that the liability has not been passed on to the customer, such a refund claim may be termed as unjust and the claim cannot be granted as a mere consequence for refund arising on final assessment. When the assessee admits that provisional assessment was followed by a finalisation of assessment being finalised, under Section 27 of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie view that the said Notification was not applicable to import made and consequently, the assessment was made on provisional basis without extending the benefit of the Notification. The respondent/importer paid ₹ 6,05,000/- and covered the balance duty amount by Bank Guarantee. The importer filed appeal before the Customs, Excise and Service Tax Appellate Tribunal and the Tribunal allowed the appeal and held that exemption was available to the importer under the said Notification. As the consequence of the order passed by the Customs, Excise and Service Tax Appellate Tribunal, the Bill of Entry was re-assessed extending the benefit of Notification No. 36/96 and the amount of ₹ 6,05,000/- paid by the importer was ordere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption under Notification No. 36/96-Customs and before final assessment, the importer filed an appeal and the assessment continued to remain provisional and it was finalised on 16-7-2008 extending the exemption under Notification No. 36/96-Customs, thus, as per the order of the Tribunal and as a consequence of which, refund claim arose only after 16-7-2008, which is after the insertion of unjust enrichment provision under Section 18 of the Customs Act, 1962. It is further contended that refund including deposits are subject to unjust enrichment and unless when the amount is paid directly to the Department, it will be subjected to unjust enrichment, whereas, if it is paid on direction of Court, it may escape from unjust enrichment concept. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the case of Commissioner of Customs, Kandla v. Hindustan Zinc Ltd. reported in 2009 (235) E.L.T. 629 (Tri.-LB) 5. We have heard learned counsel appearing for the parties and perused the materials placed on record. 6. The question that falls for consideration is as to whether the respondent/importer is automatically entitled to refund claim solely on the ground that provision for unjust enrichment was incorporated under Section 18 of the Customs Act, 1962 with effect from 14-7-2006 and in the instant case, the provisional assessment having been finalised prior to the date of insertion of the said provision. 7. The Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. and Others v. Union of India and Others re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 9B(5) reagitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation." Further, the Supreme Court in the case of Mafatlal Industries Ltd., (supra) observed the nature and the character of refund claims under the Central Excises and Salt Act and the Customs Act as under :- "Nature and character of refund claims under the Central Excises and Salt Act and the Customs Act. 105. It would be evident from the above discussion that the claims for refund under the said two enactments constitute an independent regimen. Every decision favourable to an assessee/manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proof that the liability has not been passed on to the customer, such a refund claim may be termed as unjust and the claim cannot be granted as a mere consequence for refund arising on final assessment. 9. Learned counsel appearing for the importer/assessee submitted that having regard to the above said observation of the Apex Court in the case of Mafatlal Industries Ltd., (supra) the observation by the Tribunal in paragraph 6.2 has to be set aside. The Tribunal pointed out that the order of the Tribunal dated 9-7-2007, the provisional assessment finalized in the year 2000 was set aside resulting in a refund to be made to the assessee. The Tribunal pointed out that on account of such finalisation of the provisional assessment, exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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