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TMI Blog2022 (9) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... bmit such document or information within such time as the proper officer shall require. Further, sub-section (2) of Section 18 provides when duty leviable on such goods is assessed finally or reassessed by the proper officer, then the amount paid shall be adjusted against the duty finally assessed or reassessed, as the case may be, and if the amount so paid is short of the duty finally assessed or reassessed, as the case may be, the importer or the exporter of the goods shall pay the deficiency, or otherwise be entitled to a refund, as the case may be. There is no application of Section 27 for refund arising upon finalisation of the provisional assessment. Further the refund is payable to the appellant - assessee with interest as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls of entry were finalised on the basis of test report, thus rejecting the declared value. 3. The respondent preferred appeal against the finalisation order. The learned Commissioner vide order-in-appeal dated 02.07.2020, took notice that the finalisation order is not a speaking order, as not stated anything about valuation. The learned Commissioner (Appeals) called for the test reports and found that the test was conducted to ascertain the composition of material, type of yarn and fabric. Further the description of goods and classification had been finally assessed as per the declaration. The learned Commissioner held that once an order is provisional/assessment of bills of entry on provisional basis, every aspect becomes provisional i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, without waiting for refund claim from the importer. It was further held that there is no application of Section 27 in the facts of the case. 6. He placed reliance on the ruling of High Court in the case of CCE vs. Sayonara Exports Private Ltd., 2015 (321) ELT 583. It was further observed that the bills of entry were assessed provisionally and it was only upon insistence by the Revenue that amount towards additional duty of excise was deposited by the importer. In support of which, it was also observed that the importer have deposited the claimed amount over and above the duty assessed/self assessed with respect to the bills of entry. Further observed, this amount have not been appropriated as duty in the final assessment order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of such reassessment. 9. Revenue further urges that the Adjudicating Authority have rightly rejected the refund as time barred and the Commissioner (Appeals) have erred in holding that Section 27 is not applicable, on the refund available under Section 18 (4) of the Act. It is further urged that the ruling in the case of Sayonara Exports of Madras High Court is not applicable as the same is with respect to earlier period, prior to amendment of Section 18 w.e.f. 12.07.2006. It is further urged is that the Commissioner (Appeals) have erred in holding that the amount of deposit at the time of provisional assessment does not par take the colour of duty, when such amount have not been adjusted as duty on finalisation. That the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment under Section 27A on the date of refund of such amount. 11. In view of my aforementioned findings and observations, I hold that there is no application of Section 27 for refund arising upon finalisation of the provisional assessment. I further hold that the refund is payable to the appellant - assessee with interest as per sub-section 4 of Section 18, subject to the test of unjust enrichment as required under sub-section 5. 12. The learned Counsel in the course of argument has placed before this Tribunal Order No. 32/2021 dated 25.06.2021 passed by the Dy. Commissioner of Customs whereby the refund have been allowed for the claimed amount Rs. 40,55,267/-. In this view of the matter the appeal by revenue is dismissed. I further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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