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TMI Blog2016 (10) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... have a clause of unjust enrichment has to be satisfied before the refund is sanctioned. On 13.7.2006, an amendment was carried out, by which it mandated in Section 18(3) & (4) that any refund that arises due to finalization of provisional assessment has to also satisfy the doctrine of unjust enrichment. The bar of unjust enrichment in the case of refund arising out of finalization of provisional assessment will apply only from 13.7.2006. Also a certificate issued by a Chartered Accountant in July 2005, who, after verifying the books of accounts and records and other relevant records of the appellant, had certified that the amount for which refund has been claimed is not charged to profit and loss account as an expense, the said amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the deposits made by the appellant were revenue deposits and a Chartered Accountant has issued a certificate stating clearly that the amounts are not expensed out and are shown in the balance sheet as receivable, held in favour of the assessee and directed for the refund of the said amount. Aggrieved by the said decision, Revenue filed an appeal before the first appellate authority. The first appellate authority, after considering the submissions made before him relying upon the judgment of the Hon ble High Court of Bombay in the case of Bussa Overseas and Properties Pvt. Ltd. vs. UOI 2003 (158) ELT 135 (Bom.), held that the refund arising under Section 18(2) is also subject to passing the hurdle of unjust enrichment. Coming to such a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment, question of unjust enrichment does not arise, the first appellate authority was not correct in relying upon the judgment of Bussa Overseas Properties Pvt. Ltd. (supra) as this specific point of amendment to Section 18 was not discussed and was not before the Hon ble High Court of Bombay. It is also his submission that the appellant had produced positive evidence in the form of certificate from the Chartered Accountant, wherein it has been clearly mentioned that the appellant had capitalized the amount of customs duty paid as a revenue deposit and was not recovered from the Municipal Corporation of Greater Mumbai or any other customer. He would submit that the appellant had passed the hurdle of unjust enrichment. 6. Learned d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that arises due to finalization of provisional assessment has to also satisfy the doctrine of unjust enrichment. In my considered view, this amendment was not at all necessary if it is the case of the Revenue that doctrine of unjust enrichment applies in each and every case. I find strong force in the contentions raised by the learned counsel that the Hon ble High Courts of Karnataka, Madras and Delhi in the recent judgments of Mangalore Refinery Petrochemicals Ltd., Sayonara Exports Pvt. Ltd. and Indian Oil Corporation respectively have held that bar of unjust enrichment in the case of refund arising out of finalization of provisional assessment will apply only from 13.7.2006. 9. On merits also, I find that the contentions raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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