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TMI Blog2016 (12) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... against Department. - C/21346/2015 - A/31415/2016 - Dated:- 13-12-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) Shri Arun Kumar, AR for the Appellant Shri Nikhil Rungta, Advocate for the Respondent ORDER [ Order per: Sulekha Beevi, C.S. ] 1. The issue that arises for consideration in this appeal is whether the refund arising out of provisional assessment prior to 13-07-2006 would be hit by the doctrine unjust enrichment. 2 The above appeal is filed by the department challenging the order passed Commissioner (Appeals), who set aside the order of original authority and allowed the refund claimed by the respondent herein. 2.1 Brief facts are that the appellant imported 1,11,506 WMT of Iron Ore concentrate fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent to the finalisation of provisional assessment U/s 18 of Customs Act, 1962. He submitted that Section 18 has to be read along with Section 27 and that any person who applies for refund of duty in pursuance of order of final assessment has to establish that the refund is not hit by unjust enrichment. The appellant having failed to establish the same, the Commissioner (Appeals) ought to have upheld the order of the original authority, directing to credit the refund to Consumer Welfare Fund. 4. Against this the Ld. Counsel Sri Nikil Rungta, appearing for the respondent adverted to Section 18 of the Customs Act and also relied upon the decisions laid in the following cases. CCE Vs Hindalco Industries Ltd. 2008(231)ELT36(Guj) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention put forward by the Ld AR has been considered. In para 17 the Hon ble Court observed that the contention of Department that the provisions of Explanation-11 to Section 27 of the Act would apply, as is settled in the original order, does not arise in case of refund, which is the case on hand, as the claim in the present case arose prior to 13-07-2006. The Hon ble High Court of Gujarat in Hindalco Industries Ltd 2008(231) ELT 36(Guj) relied in the above judgments has given a categorical finding on the issue in para 21 and 22 of the judgment as under. 21. Therefore, on both counts, in light of the authorities referred to hereinbefore, and on interpretation of provisions of Section 18 of the Act, on finalisation of assessment if an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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