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TMI Blog2015 (5) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment was incorporated only on 13-7-2006. In the absence of any clear legislative intention emerging from the amendment that such an amendment would have retrospective effect. The rejection of refund claim on the ground of unjust enrichment is not correct - appeal allowed - decided in favor of appellant. - C/19/2008-DB - Final Order No. 21448/2015 - Dated:- 26-5-2015 - G. Raghuram, President and Shri B.S.V. Murthy, Member (T) Shri Karan Talwar, Advocate, for the Appellant. Shri G. Shiril Saraj, Authorised Representative, for the Respondent. ORDER [Order per : B.S.V. Murthy, Member (T)]. - The appellants had imported gas coke under 8 Bills of Entry which were assessed provisionally. Appellants had paid anti-du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (156) E.L.T. 161 (S.C.)], had taken a view in favour of the assessee. 3. We have considered the submissions. Section 18 of Customs Act as it existed prior to the amendment on 13-7-2006 and thereafter is reproduced below (relevant provisions only) : - Section 18. Provisional assessment of duty. - (1) . (2) When the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections would clearly show that prior to amendment on 13-7-2006, there was no provision for crediting the refund amount to the Consumer Welfare Fund. 4. The decision of the Hon ble High Court of Gujarat in the case of Hindalco Industries Ltd. (supra) is squarely applicable to the facts of this case. In this decision, Hon ble High Court of Gujarat had considered the issue in great detail and had also considered the decision of the Hon ble High Court of Bombay in the case of Bussa Overseas and Properties Pvt. Ltd. v. UOI [2004 (164) E.L.T. A177 (S.C.)] and had relied upon the decision in the case of TVS Suzuki Ltd. (supra). 5. Learned AR had relied upon the decision in the case of Bussa Overseas and Properties Pvt. Ltd. which we have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss. 49. In the present case, not only no such case has been made out by the appellant-Mandal, the position is to the contrary. All the authorities below have expressly recorded a finding that the appellant-Mandal has recovered the amount from consumers and as such excise duty is passed on to consumers/customers. In view of specific finding, in our opinion, the conclusion is inescapable that the appellant-Mandal is not entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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