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TMI Blog2022 (1) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2006. Refund of duty paid on import of spare parts before 2003 - HELD THAT:- The learned counsel for the appellants has categorically submitted that there was no case where they have imported at a price higher than the price at which the independent /unrelated entities have imported the spare parts. Therefore, the observations of the SVB order are superfluous and not applicable as far as the imports in 2002 or before are concerned. Therefore, there are no basis in the conclusions arrived at in Order-in-Original and Order-in-Appeal. Appeal disposed off. - Customs Appeal No. 28399 of 2013, 21104 of 2016, 21105 of 2016, 20295 of 2018, 21031 of 2018 and 27341 of 2013 - Final Order No. 20005 to 20010/2022 - Dated:- 7-1-2022 - SHRI P. ANJANI KUMAR, TECHNICAL MEMBER AND SHRI P DINESHA, JUDICIAL MEMBER Ms. Neetu James, Advocate (LAKSHMI KUMARAN SRIDHARAN) for the Appellant. Shri Rama Holla, Superintendent, Authorised Representative for the Respondent ORDER The appellants, M/s. Cisco Systems Pvt. Ltd., are engaged in import of goods from their related entities and sale, thereof. The imports effected by the appellants were subjected to provisional assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel relies upon the following case laws: (i) Commissioner of Customs, Tuticorin vs. CESTAT, Chennai: 2021 (376) ELT 65 (Mad.) (ii) Commissioner of Customs (Preventive) vs. Goyal Traders: 2014 (302) ELT 529 (iii) Beam Global Spirits Wine (India) P. Ltd. vs. CC, New Delhi: 2018 (360) ELT 142 (Tri. - Del.) (iv) Bhagyanagar Metals Ltd. vs. Commissioner of Central Excise, Hyderaba-II: 2016 (333) ELT 395 (Tri. - LB) (v) M/s. Escorts Heart Institutes and Research Centre vs. CC (Import General), New Delhi: 2016-TIOL-761-CESTAT-DEL. (vi) Commissioner of Customs vs. Hindalco Industries Ltd.: 2010 (262) ELT 106 (Guj.) (vii) Commissioner of Customs vs. Hindalco Industries Ltd.: 2008 (231) ELT 36 (Guj.) (viii) Jaswal Neco Ltd. vs. Commissioner of Customs, Visakhapatnam: 2015 (322) ELT 561 (SC) (ix) Reliance Industries Ltd. vs. Union of India: 2015 (326) ELT 664 (Guj.) (x) CC (Appeal), Bangalore vs. M/s. Alcatel Luccent India Pvt. Ltd. decided by Hon ble High Court of Karnataka on 30.09.2021 in CSTA No.7/2021. (xi) Mangalore Refinery Petrochemicals Ltd. vs. CC, Mangalore: 2015 (323) ELT 484 (Kar.) 2.2 Learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, learned Commissioner vide Order-in-Appeal finds that the appellant relied upon the decision of the Tribunal (Chennai Bench) in the case of M/s. Sterlite Industries Pvt. Ltd., against which an appeal is pending before the Hon ble Madras High Court. The decision by Tribunal has not attained finality and hence, does not have any binding nature of constructive judicata . However, we find that Hon ble Madras High Court decided the issue finally in the case of CC, Tuticorin vs. Sterlite Industries (India) Ltd.: 2021 (376) ELT 65 (Mad.) holding that:- 4. In view of the aforesaid and having heard the Learned Counsel for the parties, we are satisfied that prior to amendment of law, by insertion of Section 18(3) in the Customs Act, the Revenue could not demand any interest on the differential duty assessed upon final assessment where the goods have been cleared on provisional assessment under Section 18(1) of the Act. The retrospective levy is not intended and the amendment in law is a substantive provision for making a provision for levy of interest in the present case. Therefore, for a period prior to 13-7-2006, such levy of interest cannot be imposed on the Assessee. Therefore, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st paid by the assessee or borne by him in a case not falling under the provisional assessment. Sub-section (2) of Section 27 of the Act provides that any excess duty so paid after such determination shall be credited to the Fund. The proviso may be in exception instead of crediting to the Fund, the said amount is payable to the assessee, if the said amount does not fall within any of the categories mentioned in (a) to (f) of the said proviso. One such instance where the assessee was not entitled to refund was where he had already passed on the burden of duty on the customer. That is, if it is refunded to him, it would be a case of unjust enrichment. Such a provision was conspicuously missing in Section 18 of the Act. It is by way of amendment which came into effect from 13-7-2006 the said provisions contained in sub-section (2) of Section 27 of the Act was added to Section 18 by way of sub-section (5). If for a claim under Section 18 of the Act, if an assessee has to putforth a claim under Section 27 of the Act, there was no necessity for the parliament to introduce sub-section (2) of Section 27 of the Act by way of sub-section (5) of Section 18 of the Act. It only demonstrates Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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