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TMI Blog2016 (1) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... t order dated 4.9.1993 and 25.10.1993 in connection with Writ Petition No. 1581/93 and 1865/93. Revenue filed SLP with Hon'ble Supreme Court against the said order of Hon'ble High Court. While disposing the SLP, Hon'ble Supreme Court vide order dated 11.2.1994 ordered to make deposit of 50% of duty involved in respect of consignment imported against 7 specific license and for furnishing Bank Guarantee to the extent of 25% of the duty involved. Later on show-cause notice dated 22.2.1994 was issued to the importer and their supporting manufacturer M/s Earnest and Co. The show-cause notice was adjudicated by the Commissioner vide order dated 8.3.1994 and the importer was denied exemption under Notification No. 159/90-Cus dated 30.3.1990 and it was ordered to collect the amount of Rs. 97,61,183/- from the party. The Commissioner in paragraph 45 of the said order has ordered as under: - "45. In view of the evidence discussed, I order that benefit of exemption under Notification No. 159/90-Cus dated 30.3.1990 be denied to the goods imported against export of flavored Shivalik Menta Base, as indicated in the annexure to the show-cause notice. An amount of duty of Rs. 97,61,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under 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." 14. As stated above, Para 104 of the judgment in the case Mafatlal Industries Ltd. (supra) states that if refund arises upon finalisation of provisional assessment, Section 11B will not apply. Para 104 of the said judgment does not deal with payment under protest. In the light of what is stated herein, we may now consider the judgment of this Court in the case Sinkhai Synthetics & Chemicals Pvt. Ltd. (supra). In that matter, the assessee was a manufacturer. The assessee claimed exemption which was denied by the Department. The assessee went in appeal to CEGAT. Pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso relied on the decision of the Tribunal in the case of Oriental Export Vs. Commissioner of Customs, New Delhi - 2001 (127) ELT 576 (Tri-Del). In the said decision, the Tribunal has observed as follows: - 4. We have carefully considered the submissions made? by both sides. It was brought to our notice that in the similar circumstances the Tribunal has already taken the view that doctrine of unjust enrichment is not applicable to provisional assessment in terms of Section 18 of the Customs Act which is similar to Rule 9B of the Central Excise Rules. 5. In para 3 of the Final Order No. 694/2000-A dated? 30-8-2000 it was observed that with reference to Section 18, from the provision, it is clear that the authority, while finalising the assessment, should have ordered refund of the excess amount paid by the assessee. Since such a procedure was not resorted to by the adjudicating authority while finalizing the assessment, applications were made. 6. In the facts and circumstances following the ratio of the aforesaid decision and in view of the observations made by the Supreme Court in the case of Mafatlal Industries we are of the view that unjust enrichment is not applicable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Accountant dated 22.2.2010 that the amount of Rs. 92,04,624/- is shown as amount recoverable from the Customs against duty paid under protest. He further argued that once the C.A. certificate is produced then the onus to prove that thee is unjust enrichment shifts to the Department. For this purpose, the law relied on the decision of the Tribunal in the case as under: - 3. Learned AR relies on the impugned order. He further relied on the decision of Hon'ble Bombay High Court in the case of Bussa Overseas and Properties Pvt. Ltd. Vs. Union of India 2003 (158) ELT 135 (Bom). In the said case, the Hon'ble High Court has observed as under: - 33. This lacuna in the statute pointed out by the Apex Court in the case of Mafatlal Industries (supra) has been remedied by the Legislature, by Act 21 of 1998 Clause (eb) has been inserted to the definition of relevant date contained in Section 11B of the Central Excise Act with effect from 1-8-1998. Similarly by Notification No. 458 (E), dated 25-6-1999, Rule 9B of the Central Excise Rules, 1944 has been amended. As a result of these amendments, the refunds arising on finalization of provisional assessment under Rule 9B is subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und, as the case may be. Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) re-agitating 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. It is clear from the decision of Hon Supreme Court that if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution Bench in the case of Mafatlal Industries Ltd. (supra), which with respect, had no application. As stated above, Para 104 of the judgment in the case of Mafatlal Industries Ltd. (supra) dealt with refund consequent upon finalisation of provisional assessment. Para 104 does not deal with refund of duty paid under protest. As stated above, there is a difference under the Act between payment of duty under protest on one hand and refund consequent upon finalisation of provisional assessment on the other hand. This distinction is missed out, with respect, by the judgment of this Court in the case of Mafatlal Industries Ltd. (supra). We may also point out that the judgment in the case of Sinkhai Synthetics & Chemicals Pvt. Ltd. (supra) is based on the concession made by the Counsel appearing on behalf of the Department. That judgment is, therefore, per incuriam. Learned Counsel for the respondent herein placed reliance on the judgment of this Court in the case of TVS Suzuki Ltd. (supra). In that case, application for refund was filed. This was on completion of final assessment. On 9-7-1996, the Department issued a show cause notice as to why the refund claim should not be reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. Mehta and Associates dated 7.9.2006 states as follows: - "Our clients M/s Jindal Drugs Ltd. is a company incorporated under provisions of Companies Act, 1956, and carrying on their business at Bhaktawar, 6th Floor, B&C, 2298, Nariman Point, Mumbai 400 021. The above mentioned amount of Rs. 19,44,170/- is shown in the records of company viz. M/s Jindal Drugs Ltd., as "amount recoverable from the Customs authorities against duty paid under protest" from year 1994 till date." Along with this certificate are enclosed two documents which appear to be journal and Ledger titled Particulars of taxes and duties paid under protest, both certified by the CA. The journal has entries from January 1994 to March 2006 while the ledger is of the period 1.4.2005 to 31.3.2006. Journal has an entry dated 7/3/1994 of an amount Rs. 1,944,170/-. Another certificate of C.A. M/s D.R. Mehta and Associates dated 22 February, 2010, states as follows: - "We are statutory auditors of Jindal Drugs Ltd. since its inception. We hereby certify that an amount of Rs. 92,04,624/- is shown in the records of the Company viz. Jindal Drugs Ltd. as amount recoverable from the Customs Authorities. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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