9911796707
TMI Blog2015 (5) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of anti-dumping duty. The refund was sanctioned but credited to the Consumer Welfare Fund of India in the absence of proof that the burden of duty has not been passed on to the buyer. 2. After hearing both the sides, we find that the issue involved is only whether the rejection of refund claim on the ground of unjust enrichment of the amount becoming due as refund on finalization of provisional assessment is correct. The appellants relied upon the decision of the Hon'ble High Court of Gujarat in the case of CC v. Hindalco Industries Ltd. [2008 (231) E.L.T. 36 (Guj.)] wherein it was held that provisions relating to unjust enrichment would not be applicable for Bills of Entry provisionally assessed prior to 13-7-2006, the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 refund, as the case may be; (b) .... (3) .... (4) Subject to sub-section (5), if any refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. v. C.C.E. & C. [2005 (181) E.L.T. 328 (S.C.)] to submit that according to Hon'ble Supreme Court, the doctrine of unjust enrichment is based on equity and therefore irrespective of applicability of Section 11B of Central Excise Act, 1944, doctrine can be invoked to deny benefit to which a person is not otherwise entitled. On the one hand it has to be appreciated that the decisions of the Hon'ble High Court relied upon by the assessee are on the very same issue and are applicable in terms of law. Whereas the decision in the case of Sahakari Khand Udyog Mandal Ltd. (supra) was rendered in relation to rebate on excess production of sugar. Therefore it cannot be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant which cannot be permitted. In our opinion, therefore, even on that count, orders passed by the authorities and refusal to grant benefit cannot be held arbitrary, unreasonable or inequitable. The said ground also, therefore, has to be rejected. 6. From the reproduced paragraphs, it can be seen that Hon'ble Supreme Court held that the unjust enrichment doctrine can be invoked to deny the benefit to which a person is not otherwise entitled and further it was also held that this does not mean that in the absence of statutory provisions, a person can claim or retain undue benefit. In this case, there is a clear statutory provision which provides that he is entitled to refund. Further the concept of unjust enrichment was incorpora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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