9911796707
TMI Blog2015 (6) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999. On finalization of the provisional assessment, the appellants were eligible for refund of excess CVD and BCD paid amounting to Rs. 7,75,157/-. The adjudicating authority vide order dated 30.7.2004 sanctioned the amount but credited the same to the Consumer Welfare Fund on the ground that the appellants have not crossed the bar of unjust enrichment. On appeal, the lower appellate authority rejected the appeal. Hence the present appeal. 3. Heard both sides and perused the records. 4. The learned counsel for the appellant submits that the finalization of the provisional assessment pertains to the year 1999 and refund was sanctioned in the year 2004. He further submits that the provision of unjust enrichment was introduced under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest under sub-section (4), if any, shall, instead of being credited to the Fund, be paid to the importer or the exporter, as the case may be, if such amount is relatable to (a) the duty and interest, if any, 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; 7. With effect from 13.7.2006, all cases of finalization of provisional assessment under Customs Act are covered by unjust enrichment clause. In the present case the finalization of provisional assessment was completed in the year 1999 much before the insertion of sub-section (5) to Section 18 of Customs Act. The decisions relied by the learned AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situations, which have been specifically referred to by the Gujarat High Court in the case of Hindalco Industries (supra). Two situations are as under: "9.1 Referring to Explanation II to Section 27 of the Act it was submitted that the same would apply to a case where after the final assessment and the adjustment, if still the Assessee is not satisfied with the adjustment and claims excess amount as refund. Explanation II will have no application in cases where admittedly after final adjustment, refund is due to the Assessee. This is explained with the following illustration: Duty paid provisionally Rs. 100 Duty finally assessed Rs. 60 Duty to be refunded Rs. 40 In this case Explanation II will have no application since no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. Such situations may occur after the passing of the final assessment, on account of rectification under Section 154 of the Act or because of any other reason, as a result of which the final order suffers an amendment or a change and some-amount becomes refundable. As far as Section 18 of the Act is concerned, when an amount becomes refundable after a final order is passed, the same has to be refunded immediately and for this purpose the assessee is not required to move an application under Section 27 and accordingly sub-section (2) to Section 27 would not apply. It is in this situation that the legislature has intervened and has now inserted sub-sections (3), (4) and (5) to Section 18 w.e.f. 13-7-2006. These insertions obviously are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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