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TMI Blog2017 (2) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms for refund of the excess customs duty for an amount of Rs. 6,76,84,559/-. They also attached the confirmation from the foreign supplier to the effect that the goods covered by these bills of entry were wrongly over invoiced. The department returned the claim with the observation that the assessments were provisional and hence, the appellant was advised to resubmit their refund claim after finalisation of the provisional assessments, if any duty is excess paid. It is also pertinent to record that the imports made by the appellant from their parent company abroad were ordered to be assessed provisionally since the invoice values between the two related parties were being looked into by the Special Valuation Branch (SVB) of the customs department. The provisional assessments were finalised vide the assessment order 23.4.1998. Thereafter, the appellant re-filed their refund claim on 8.1.1999. The department issued show-cause notice dated 14.10.1999 proposing to reject the refund on the ground of time bar as well as on the ground that it is not maintainable since they have not filed the appeal against the order of finalisation of the provisional assessments. The original authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice values at which the appellant is importing from their parent company. The present refund pertains to 8 bills of entry which were also provisionally assessed. In fact, the refund claim was asked to be resubmitted by the Department only after the finalisation of the provisional assessment. (iii) It has been held by the Hon'ble Gujarat High Court as well as by the jurisdictional High Court of Karnataka in various decisions that the bar of unjust enrichment will be applicable to the cases of provisional assessments ordered under Section 18, only with effect from the date of introducing such amendments in 2006. The Hon'ble High Courts have also held that the provisions of Section 18 alone will govern the refunds in respect of provisionally assessed cases and not Section 27 of the Customs Act. He relied upon the following case laws: a. Mangalore Refinery & Petrochemicals Ltd. vs. Commissioner of Customs, Mangalore: 2015 (323) ELT 484 (Kar.) b. CC vs. Hindalco Industries Ltd.: 2010 (262) ELT 106 (Guj.) c. CC vs. Hindalco Industries Ltd.: 2010 (231) ELT 36 (Guj.) (iv) They have further submitted that the contract price for supply of equipment to DoT/MTNL is in fact lesser t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner (A) in the remand proceedings, the learned Commissioner (A) has recorded the findings that the appellant has failed to prove that they have not passed on the incidence of the excess customs duty paid to their customers. But the appellant in the present appeal has raised the argument that during the period prior to 2006, in cases of refunds arising out of finalisation of provisional assessment under Section 18 of the Customs Act, there is no need to apply the doctrine of unjust enrichment. Section 18 of the Customs Act has been amended with effect from 13.7.2006 to the effect that the refund will be paid in cash only subject to the condition that the importer/exporter has not passed on the incidence of such duty. The question whether the doctrine of unjust enrichment will be applicable for refund claims pertaining to the period prior to 2006 has been the subject matter of much debate. In the decision of the Hon'ble Karnataka High Court in the case of Mangalore Refinery and Petrochemicals Ltd. vs. CCE, Mangalore (supra), the Hon'ble High Court has decided that prior to the amendment of Section 18 i.e., before 13.7.2006, the doctrine of unjust enrichment will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just enrichment. Therefore, it follows prior to the amendment, this doctrine of unjust enrichment was not attracted to refund claim under Section 18 of the Act. 11. In fact this Court had an occasion to consider this aspect in the case of Commissioner of Central Excise v. ITC Limited reported in 2011 (268) E.L.T. 308 (Kar.) where after referring to the judgment of the Apex Court in the case of M/s. Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.) and Commissioner v. Allied Photographics India Ltd., reported in 2004 (166) E.L.T. 3 (S.C.) as well as Commissioner v. T.V.S. Suzuki Ltd., reported in 2003 (156) E.L.T. 161 (S.C.) held that refund claims consequent upon finalization of provisional assessment does not attract the bar of unjust enrichment. The refund is paid in pursuance of the finalization of provisional assessment order and the doctrine of unjust enrichment does not apply to such a case. 12. The Gujarat High Court in the case of Commissioner of Customs v. Hindalco Industries Ltd., reported in 2008 (231) E.L.T. 36 (Guj.) has taken a similar view and these judgments are not referred to or looked into by the authorities. They are carried ..... X X X X Extracts X X X X X X X X Extracts X X X X
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