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TMI Blog2007 (10) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act for want of original documents and pending clarification regarding classification of movable gears, spare parts, stores, fuel and oil and food stuffs on board the vessels imported for breaking. Based on the provisional assessment, the appellant has paid Rs.6,40,09,770/- as duty and got the ships cleared for breaking. (b) The Central Board of Excise Customs, New Delhi issued Circular No.37/96-Cus. Dt.3/7/1996 on the basis of opinion given by the World Customs Organization, Brussels. It was clarified that the classification of Moveable gears, Spare parts, Fuel oil and stores on board the vessels imported for breaking purpose should be done separately on merits and not as part of the ship. As per the said circular, the Asst. Commissioner, Central Excise, Bhavnagar, finally assessed all 5 bills of entry by issuing final assessment orders dt.9/3/1999 and demanded the differential duty of Rs.12,05,840/- from the appellant. (c) On party's appeal, Commissioner (Appeals) vide his order dt.21/10/1999 set aside the orders by way of remand with directions to supply relevant documents based on which the differential duty was arrived at. (d) The appellant did not appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ims; the concept of unjust enrichment is not applicable as the assessment was provisional and subsequently finalized. 4.3. The prayers of the appellant as crystallized in the written submission are as follows:- (i) To return deposited amount of Rs.12,05,840/- with interest at 12% per annum from 10/10/2006 i.e. after expiry of three months from Tribunal's order dt.10/7/2006. (ii) To re-assess the 5 bills of entries extending the notifications claimed by them and judgments cited by them and to order suo-moto refund of excess amount paid without insisting to file refund claims and without applying doctrine of unjust enrichment. To reassess two of the bills of entries on the basis of LDT instead of MT. (iii) To extend the benefit of Regulation 2 of Imported Stores (Retention on Board) Regulations 1962 permitting consumption without payment of import duty leviable during the period such vessel is not a foreign going vessel or aircraft. (iv) The value of drinks and other bonded items of ships should be deducted from the value of the ship for assessment. 4.4 He relies on the following judgments: (i) CCE, Hyderabad Vs. ITC Ltd [2005 (179) E.L.T. 15 (SC)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is different from the assessing authority. The original authority, while considering the matter on remand, can not enlarge the dispute beyond what has been dealt with by the higher appellate forums. The order of remand dated 21-10-99 of the commissioner (appeals) related to providing documents on the demand of differential duty amounting to Rs 12,08,040/ and observing the principles of natural justice. At subsequent proceedings before the commissioner (appeals) and the Tribunal also the appellant has not raised any additional grounds. The attempt to reopen the correctness of the undisputed duty amounting to Rs 6,40,09,770/which was paid consequent to provisional assessment in a dispute involving Rs 12,08,040/ on the basis of a judgment delivered in 2003 does not deserve to be encouraged. 6.3 The provisional assessment envisaged under Section 18 is a measure of facilitation so that the clearance of the imported goods is not held up to the detriment of the importer and the nation. Section 18 envisages provisional assessment by taking such "security as the proper officer deems fit for the payment of deficiency, if any, between the duty finally assessed and the duty provisionally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 6.6 The reading of the Section 18(2) would imply that the dispute may be finalized leading to nil recovery or a recovery upto the estimated amount. If the amount was finalized as per the original claim of the importer, naturally there will be no demand and the entire amount of security requires to be returned. If the excess amount payable is more than the security recovered naturally the importer has but make good the same. 6.7 The customs duty is an indirect tax. When the importer disposes of the imported goods or uses in the manufacture and sells the final product naturally the burden of duty is presumed to be passed on to the customers. It appears that it is not the intention that if an importer pays a provisionally assessed duty of Rs.1 crore and there was a dispute of duty to the tune of Rs.10 lakhs, the entire Rs.1.1 crore will be not covered by the provisions of unjust enrichment. In other words, when the assessment is initially made provisionally the assessed duty requires to be paid before clearance and when assessment is finalized latter, it is not justified to hold that the duty which was payable by the importer in terms of provisional assessment would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re even superseded or rescinded in the year 1992-93, when the two bills of entry were filed! Those notifications were: 118/89, 93/90, 122/90 and 10/91. As regards possible exemption from SED in excess of 5%, the notification 82/91 allowed it only for a specific sub-heading 2710.31. It was not the claim of the appellant that their subject goods fell under this sub-heading." 7.2 It is worth reiterating that the burden to prove taxability is on the department. In a general sense, it is also true that the benefit of exemption notification should be extended by the assessing authority. However the burden to prove that they are eligible for any exemption is on the assessee. The assessee claims the benefit of certain exemptions for the first time before the adjudicating authority that too in de novo proceedings. It is to be remembered that the adjudicating authority and appellate authorities decide the disputed issues before them. The adjudicating authority, in remand proceedings has further limitation as he is bound to follow strictly the terms of the remand order. 8.1 A sum of Rs.12,05,840/- was held payable by the Original Authority vide his order dt.9/3/1999 and again by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) as the Original Authority is bound to follow the conditions of the remand order. There is no justification for sending the matter once again for reconsideration. When the matter was earlier before the original authority on remand in pursuance of the order dated 21-10-99 of the commissioner (appeals) the appellant has not cooperated in the adjudication proceedings. (b) The original authority, as per the terms of the remand orders, has decided holding that the differential duty payable is only Rs.6,15,535/- and the balance of Rs.5,90,205/- is eligible as refund. (c) The finalization of provisional assessment took place in March 99 and the differential duty involved having been paid in October 2004, there is no scope for any presumption that the appellant could have passed on the differential duty to the consumers. In respect of the amount found to be eligible for refund the bar of unjust enrichment shall not apply. (d) Further, in the light of the peculiar facts and circumstances of the case, there is no need for a separate claim for refund. Therefore the refund is payable suo moto. (e) They are not eligible for benefit of use of duty free stor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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