9911796707
TMI Blog2016 (5) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment by loading the value by 2% to 5 % by Bombay Customs which was complied with by the appellants as revenue deposit. The Bombay Customs vide Order No.S/5-SVB-78-97/VB dt. 30.5.1997 decided that no loading was warranted. The issue of valuation was finally settled by the Commissioner (Appeals) in the appeal filed by the Revenue. The appellant filed refund claim in respect of 5% revenue deposit deposited during the provisional assessment with the respective authorities i.e. Mumbai, Pune, Hosur. The claim filed at Mumbai have been sanctioned and paid holding that the such amount being revenue deposit the provisions of Section 27 would not apply and consequently bar of unjust enrichment will also not applicable in such cases. The claim fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant have not challenged the assessment of the finalization of the provisional assessment. He further submits that the refund arose out of finalization of the provisional assessment which is in respect of 5% revenue deposit, therefore the refund falls under Section 18 of the Customs Act, 1962 whereunder during the period involved in the present case, the provision of unjust enrichment was not existing. The bar of unjust enrichment was inserted by way of Sub-section (5) of Section 18 w.e.f. 13.7.2006 whereas the period involved in the present case is prior to 13.7.2006. Therefore during the material time the bar of unjust enrichment was not applicable in case of refund arise out of finalization of the assessment where the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereas the adjudicating authority has already sanctioned the refund but credited into Consumer Welfare Fund applying the provisions of unjust enrichment. Against the sanction of the refund claim there is no appeal from the Revenue therefore Commissioner (Appeals) was not supposed to decide the case of admissibility of the refund, sanction of refund attainted finality. The only issue before the Commissioner (Appeals) was the bar of unjust enrichment, however by deciding the refund the issue arising out of the order-in-original is as regard the issue of unjust enrichment. I find that the refund is in respect of revenue deposit made by the appellant for provisional assessment of imports in terms of Section 18 of the Customs Act, 1962 which rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed and if the amount so paid falls short of, or is in excess of, 1[the duty finally assessed], the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed is in excess of the duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal to twice the amount of the excess duty. From the above Section 18 prevailing at the time of provisional assessment as per Section 18(2) in case on final assessment if any amount falls in excess the importer shall be entitled to refund. However the bar of unjust enrichment was first time inserted under Section 18 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that when the duty leviable on the goods is asssessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, 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 - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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