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TMI Blog2007 (11) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... r per: M. Veeraiyan, Member (T)].- 1. - This is a department's appeal against the order of the Commissioner (Appeals) No. 303/03 dated 30-9-03 by which the order of the original adjudicating authority which was in favour of the assessee was upheld. 2. Heard both sides. The goods imported by the respondents were assessed provisionally and the duty so assessed amounting to Rs. 11,50,851/- was paid. The provisional assessment was subsequently finalized, and the assessee became entitled to refund of Rs. 94,654/-. The original adjudicating authority held that on finalization of provisional assessment, the importer of the goods should pay the differential duty or entitled to refund, as the case may be, and accordingly he sanctioned refund in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sec. 18 of the Customs Act, 1962. The decision of the Tribunal in the case of Hindalco Inds. Ltd. (cited supra) has taken into account the amendment to Sec. 18 w.e.f. 14-7-06. 5.2 The relevant portion of the order of the Tribunal in the case of Hindalco Inds Ltd. are as follows: "5. The amount of duty refundable under sub-section (2) and the interest under sub-section (4) if any, shall instead of being credited to the Fund, be paid to the importer or the exporter, as the case may be, if such amount is relatable to: (a) the duty and interest, if any, paid on such duty by the importer or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Central Excise [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 CCE, Mumbai v. Allied Photo- graphics India Ltd. [2004 (163) E.L.T. 401 = 2004 (4) SCC 55] noticing the inconsistency, doubted the correctness of two decisions rendered by three-Judge Bench of this Court in, i.e. (i) Sinkhai Synthetics & Chemicals (P) Ltd. v. CCE [2002 (143) E.L.T. 17 = 2002 (9) SCC 416] and (ii) CCE v. TVS Suzuki Ltd.[2003 (156) E.L.T. 16 = 2003 (7) SCC 24] as contrasted to the Constitution Bench decision in Mafatlal Industries Ltd. v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d indicate that the amount of the refund claim will be covered by the provisions of Section 18 as they stood prior to amendment of said section on 14-7-2006. The Hon'ble Supreme Court in the case of CCE, Chennai v. TVS Suzuki Ltd. (supra), held as under "Shri Verma fairly concedes that the proviso introduced in sub- rule (5) of Rule 9B cannot be said to be retrospective in operation. He, however, contends that on the date on which the proviso was brought into force, i.e. 25-6-1999 the refund claim was still pending with the Departmental authorities and, therefore, it had to be adjudicated in accordance with the law as it became enforceable from 25-6-1999. In our view, this contention cannot be accepted. Merely because the Departmental aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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