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TMI Blog2007 (11) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. In the said Final Order, the Tribunal relying on its own decision in the case of CCE, Visakhapatnam v. Godavari Fertilizers & Chemicals Ltd. - 2006 (202) E.L.T. 511(T) and also the decision of the Hon'ble High Court of Judicature at Bombay in the case of Bussa Overseas & Properties Ltd. v. Union of India, 2003 (158) E.L.T. 135 (Bombay) has held that the doctrine of unjust enrichment would be applicable to all refund arising out of the finalization of provisional assessment under Section 18 of the Customs Act. The learned Advocate pointed out that due to an inadvertent error, the appellant, at the time of final hearing, could not bring to the notice of the Bench, an amendment made to Section 18 of the Act, which goes fund directly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then- (a) in the case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of, or is in excess of 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." After amendment to Section 18 by Taxation Laws (Amendment) Act, 2006, w.e.f.13-7-2006, Section 18 reads as under :- "S. 18. (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of, or is in excess of 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. (3) The importer or exporter shall be liable to pay interest, on any amount payable to the Central Government, consequent to the final assessment order under sub-section (2), at the rate fixed by the Central Government under section 28AB from the first day of the month in which the duty is provisionally assessed till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 27 of the Act could not be read into the provisions of Section 18 of the Act to deny refund on the ground of unjust enrichment. The learned Advocate further pointed out to a recent decision of the Tribunal in the case of Commissioner of Customs, Ahmedabad v. M Hindalco Industries Ltd. [2007 (215) E.L.T. 113 (Tri.-Ahmd.) = 2007-TIOL-735-CESTAT-AHM]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 the amount of duty in the case of provisional assessments was incorporated only with effect from 14-7-2006 any assessment finalized 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 ..... ultimate consumer then the refund due would be only credited to the Consumer Welfare Fund. In view of this position an error apparent on the case of the record has happened purely due to the inadvertence of the parties concerned. In view of the amendment of Section 18, the position which emerges now is that prior to the amendment of Section 18, the doctrine of unjust enrichment can not be applied to the refund arising consequent to the finalization of provisional assessment under Section 18 of the Customs Act, 1962. In other words, the position becomes very similar to that of the Central Excise. In Central Excise also, it has been held by the various judicial fora and also by the Hon'ble Apex Court that prior to the amendment of Rule 9B(5) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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