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TMI Blog2018 (4) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... books of account, under the head “Excess Custom Duty Paid – Refundable”. There is no ambiguity in the said statutory provision, in vogue at present, that order of assessment has to be challenged and thereafter, as a consequence of favourable adjudication, the refund claim has to be filed and to be entertained by the Department - It transpires from the said findings of the original authority that the doctrine of unjust enrichment is not applicable in the case of the appellant, for denying the refund benefit to it. Appeal allowed - decided in favor of appellant. - Customs Appeal No. C/60303/2013-SM - FINAL ORDER NO.51516/2018 - Dated:- 18-4-2018 - S. K. Mohanty, Member (Judicial) Ms. Rinky Arora, Advocate - for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on at the time of importation of the subject goods. The show cause notice was adjudicated vide order dated 17.10.2012, wherein the benefit of concessional rate of duty under Notification No. 46/2011 was denied to the appellant, on the ground that it did not fulfil the conditions contained therein. However, it has been held in the said order that the appellant is entitled for the benefit of concessional rate of BCD under Sr. No. 230 of the Notification No. 12/2012 and accordingly, sanctioned the refund amounting to ₹ 5,55,933/- in favour of the appellant. Vide the said order, the adjudicating authority had also observed that the refund application filed by the appellant is not hit by bar of unjust enrichment, as it had reflected the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia) Pvt. Ltd. - 2000 (120) ELT 285 (SC) and Priya Blue Industries Ltd. Vs. CC (Pre.). 2004 (172) ELT 145 (SC). Feeling aggrieved with the impugned order, the appellant has filed this appeal before the Tribunal. 2. The ld. Advocate appearing for the appellant submitted that as per the provisions of Section 27 of the Customs Act, 1962, the importer is permitted to file the refund application, claiming refund of duty 'paid by him' or 'borne by him'. Thus, she submitted that since the appellant was entitled for the benefit of Notification No. 12/2012-Cus., dated 17.03.2012 in respect of the CVD of 12%, the excess paid CVD amount @ 20% should be available as refund. She further submitted that since Section 27 of the Act do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. 5. The issues involved in this appeal for consideration by the Tribunal are whether; refund claim is maintainable, without challenging the order of assessment passed by the assessing authority and whether, the doctrine of unjust enrichment is applicable to the facts of this case, for denying the refund benefit to the appellant. 6. In this case, the original authority had sanctioned refund amount of ₹ 5,55,933/- to the appellant, holding that the appellant is entitled for the benefit of Notification No.12/2012-Cus. dated 17.03.2012 and Notification No. 46/2011-Cus dated 01.06.2011, as amended by No.127/2011 Cus., dated 30.12.2011. He has further held that the differential amount of duty was paid by the appellant, the inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of favourable adjudication, the refund claim has to be filed and to be entertained by the Department. I find that the issue arising out of the present dispute, is no more resintegra, in view of the recent judgment of Hon ble Delhi High Court in the case of Micromax Informatics Ltd. (supra). In the said case, it has been held that under the amended provisions of Section 27 of the Act (w.e.f. 08.04.2011), the conditionality of duty payment pursuant to an order of assessment and its claim for refund, had been deleted. The relevant paragraphs in the said judgement are extracted herein below:- 12. An important change that has been made is that a person can now claim refund of any duty or interest as long as such duty or interest was pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order as such passed by the customs authorities. Although under Section 2(ii) of the Act, the word assessment includes a self-assessment, the clearance of the goods upon filing of the B/E and payment of duty is not per se an assessment order in the context of Section 27(1)(i) as it stood prior to 8th April, 2011, particularly if such duty has not been paid under protest. In any event, after 8th April, 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person under Section 27(1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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