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TMI Blog2015 (2) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... Licenses were still to be got revalidated from DGFT, is rather unfair on the part of the department. Had the department granted extension, this entire litigation could have been avoided. As the issue is more of a procedural nature than of a substantial nature, the Advance Licenses must be treated as valid at the time of ex-Bonding of goods. Refund claim - Admissibility - When the assessment not challenged by making any remarks about Advance Licenses on the Bills of Entry - Held that:- the appellants are eligible for refund followed by the judgment in the case of Karnataka Power Corporation v. Commissioner [2002 (4) TMI 79 - SUPREME COURT OF INDIA] Refund claim - Bar of Unjust Enrichment - Held that:- the facts are not clear as to how the imported goods were dealt with, whether the imports were actually used to manufacture products for which prices have been fixed on import parity basis. Therefore, it needs to be looked into by the Commissioner (Appeals). - Decided partly in favour of appellant - C/835/2012-Mum - Final Order No. A/315/2015-WZB/CB - Dated:- 11-2-2015 - Shri Anil Choudhary, Member (J) and P.S. Pruthi, Member (T) Shri M.H. Patil with Sachin Chitnis, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat CT-2-certificate issued under Chapter 10 Procedure of Central Excise Rules will be effective from date of application even if issued subsequent to date of application. 4.1 The next argument of the learned Counsel was that they had filed ex-Bond Bill of Entry when the licenses were valid but the department did not process the same for non-payment of NCCD which they were contesting. According to him, it was not a case of clearance without advance license but was only a case of clearance against valid advance license whose extension was sought from DGFT and obtained later. He relied on the case of Priyanka Overseas Pvt. Ltd. v. UOI - 1991 (51) E.L.T. 185 (S.C.), which held that the department could not take advantage of its own technicalities when the bona fides of the assessee are not in doubt. On the issue of rejection of refund without the assessment being challenged, he relied on their own case in CESTAT Order No. 241/2003, dated 24-4-2003, which order had followed CESTAT decision in the case of Mecon Ltd. v. Commissioner - 2003 (153) E.L.T. 574 as well as the case of Karnataka Power Corporation v. Commissioner - 2002 (143) E.L.T. 482 (S.C.). On the reliance placed by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied on the Hon ble Supreme Court s decision in the case of Allied Photographies Ltd. - 2004 (166) E.L.T. 3 (S.C.) in which the Hon ble Supreme Court held that uniformity in the price before and after assessment does not lead to the inevitable conclusion that the incidence of duty has not been passed on to the buyers as such uniformity may be due to various factors. 5. We have considered the rival submissions. The facts are clear to the extent that the Advance Licenses were not valid on the date of filing e-Bond Bills of Entry. However, the Advance Licenses were later revalidated up to 30-7-2008. Therefore, even if they were revalidated later, they covered the period when the ex-bond Bills of Entry were filed. The question arises whether they should be considered as valid on the day the ex-Bond Bills of Entry were filed. We note that the appellants are a Public Sector Undertaking. They were contesting the issue of leviability of NCCD on import against Advance Licenses. When this issue was resolved, they applied for extension of validity of Advance Licenses. They approached C.B.E. C. to allow clearances without having to wait for the revalidation of the Advance Licenses. The Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om DGFT, is rather unfair on the part of the department. Had the department granted extension, this entire litigation could have been avoided. Therefore, the issue at hand being more of a procedural nature than of a substantial nature, the Advance Licenses must be treated as valid at the time of ex-Bonding of goods. 5.2 We may now come to the issue of refund. There are two aspect involved. The first is whether refund is admissible when, according to the department, the appellant did not challenge the assessment by making any remarks about Advance Licenses on the Bills of Entry. The department has relied upon the case of Flock India Ltd. (supra) and Priya Blue Industries (supra) in which the Apex Court held that, unless the order of assessment has been reviewed under Section 28, refund cannot become a review of an assessment order. On the other hand, the appellant have relied on the judgment in the case of Mecon Ltd. - 2003 (153) E.L.T. 574 (T) and in the case of HPCL - 2003 (156) E.L.T. 425 in which the Tribunal considered the above judgments and relied on the three Member Bench Supreme Court judgment in the case of Karnataka Power Corporation Ltd. (supra). In this judgment, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence was not passed on to the buyers by showing cost structure, etc. Above all we do not see from the records whether any C.A. certificate was produced. The orders of lower authorities have also not discussed this aspect. 5.5 Another issue raised by the appellant is that the bar of unjust enrichment is not applicable when goods are sold at the price fixed by the Government or statutory authorities. They have relied on Karnataka Antibiotics Pharmaceuticals Ltd. v. CCE, Bangalore - 1996 (83) E.L.T. 114 (T) and the case of India Aluminium Co. - 2002 (139) E.L.T. 125 (T) holding that the bar of unjust enrichment is not applicable when, for the goods a maximum retail price is fixed or when sale prices are fixed by the Government. On the other hand, we find as stated by the learned AR, the Hon ble Supreme Court held in the case of Allied Photographics India Ltd. v. Commissioner of Customs, Mumbai - 2004 (166) E.L.T. 3 (S.C.) that uniformity in price before and after assessment does not lead to the inevitable conclusion that incidence of duty has not been passed. It is clear to us that the facts of each case have to be examined to arrive at a fair conclusion in the light of the vari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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