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TMI Blog2016 (1) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri Chatru Singh, AC (AR) For the Respondent : Shri Makarand Joshi, Advocate ORDER Per : S.S. Garg This is a department s appeal against the order of Commissioner (Appeals) no. 21/04-APTE (Airport) dated 17.02.2004 by which the order of Adjudicating Authority was set aside. 2. The brief facts of the case are that Bajaj Auto Ltd. had imported Automatic Exhaust Emission Analysis System and filed bill of entry no. 4660/18.09.91 seeking classification of the goods under CTH 902710 along with benefit of Notification 243/78-Cus for basic duty and additional duty and Notification 23/91-Cus and Notification 70/90-CE for benefit of auxiliary duty. The benefit of these Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause. The ld. AR after taking us through the grounds of appeal relied on the decision of the Hon'ble High Court of Bombay in the case of Bussa Overseas Properties P. Ltd. 2003 (158) ELT 135 in support of their contention that any refund due consequent to finalisation of provisional assessment is also governed of the unjust enrichment clause. He also submitted that SLP filed against the above judgment was summarily dismissed by the Hon'ble Supreme Court. He also cited the following case laws in support of his contention: Sahakari Khand Udyog Mandal Ltd. vs. CCE 2005 (181) ELT 328 (SC) United Spirit Ltd. vs. CC 2008 (228) ELT 360 (Tri-Mum) 4. On the other hand, ld. counsel for the respondent submitted that Section 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of India and the Supreme Court while dismissing the appeal has passed the following order: These appeals have been filed by the Revenue. The Tribunal, in the impugned order, following its earlier decision, in Messrs Needle Industries India Ltd. v. CCE [1998 (101) E.L.T. 286 (T)] has taken the view that the 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. A two-Judge Bench of this Court in Commissioner of Central Excise, Mumbai v. Allied Photographics India Ltd. [2004 (163) E.L.T. 401 (S.C.) = 2004 (4) SCC 55], noticing the inconsistency, doubted the correctness of two decisions rendered by three-Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore in view of the amendment with effect from 14.07.2006 it is very clear that the provisions of Section 27 of the Act could not be read into the provisions of Section 18 of the Act, to deny the refund on the ground of unjust enrichment. 6. Ld. counsel further cited a decision of this Tribunal in the case of Hindalco Inds. Ltd. 2007 (215) ELT 113 which has taken into consideration the vital aspect of the amendment of Section 18 and has held that since the requirement of non-passing of amount of duty in the case of provisional assessment was incorporated only with effect from 14.07.2006, any assessment finalised by the authorities would be governed by the provisions of Section 18 as it stood during the relevant period and the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Spirits Ltd. (supra) and submitted that the doctrine of unjust enrichment will be applicable to all cases of refund irrespective of whether amount refunded is duty or otherwise. Ld. counsel for the respondent assessee submitted that the judgment of United Spirits Ltd. (supra) cited by the ld. AR has been recently set aside by the Hon'ble Supreme Court of India in the case of CC (I) vs. Finacord Chemicals (P) Ltd. in Civil Appeal no. 1633-1638 of 2004 dated 08.04.2014. In view of the judgment of the Supreme Court in the above cited case and considering the number of judgements cited by the ld. counsel for the respondent wherein the various Tribunals and the Hon'ble High Court of Gujarat and the Hon'ble Supreme Court has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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