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TMI Blog2018 (2) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... ity deposit made during the provisional assessment of Bills of Entry. The adjudicating authority vide Order-in-Original dated 4.12.2008 sanctioned the refund. However, the same was credited into Consumer Welfare Fund on the ground of unjust enrichment. Being aggrieved by the OIO, the appellant filed appeal before the Commissioner (Appeals), which came to be dismissed. Therefore, the appellant is before us. 2. Ms. Laxmi Menon, learned Advocate appearing on behalf of the appellant submits that at the time of provisional assessment, there was no provisions of unjust enrichment in respect of the refund arising from the finalization of provisional assessment. Therefore, the provision of unjust enrichment is not applicable. She submits that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) re-agitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation." (b) Commissioner of Customs Vs. Hindalco Industries Ltd. 2008 (231) ELT 36 (Guj). (c) Commissioner of Customs, Kandla Vs. Hindustan Zincs Ltd. - 2009 (235) ELT 629 (Tri-LB), wherein the Larger Bench in para 7.1 has held as under: - "7.1 Before we proceed further, the relevant pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This shows that the incidence of refund amount was not passed on to any other person. 3. Shri Manoj Kumar, learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both sides and on perusal of the records, we find that Bills of Entry was provisionally assessed during the period 9.2.2004 to 2.12.2004 and the consignment was finally assessed by the Appraising Group VI on 23.5.2007. At the time of provisional assessment, there was no provision of unjust enrichment in case of a refund arising out of the final assessment in terms of Section 18 of the Customs Act, 1962. The provision of Section 18 prevailing during the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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