9911796707
TMI Blog2008 (2) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... from Turkey and filed Bills of Entry for clearance. The respondent declared the FOB value of US $ 850/- Per MT for both consignments. However, the Department assessed the consignments provisionally at the FOB value of US $ 1200/- per MT on which customs duty payable was Rs. 21,34,659/- and the said amount was deposited by the respondent and sought provisional clearance of the goods. Subsequently show cause notice was issued to the respondent for enhancement of value and confiscation of the goods. The said show cause notice was adjudicated by the adjudicating authority who re-fixed the value at US $ 1129/- PMT. The goods were confiscated with an option to redeem the same on payment of redemption fine of Rs. 7,35,000/- and a penalty of Rs. 75 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99 of the order in support of his contention. 3. The learned Counsel appearing on behalf of the respondent submits that the issue involved in this case is slightly different. It is his submission that FOB value as declared by the respondent initially was admitted by the department and the goods were cleared provisionally on provisional assessment. He submits that on such a situation, the assessment having attained finality, it is covered by the decision of the Apex court in the case of Allied Photographics. India Ltd. - 2004 (166) E.L.T. 3 (S.C.) and also in the case of CC, New Delhi v. Oriental Export as reported at 2006 (200) E.L.T. A138 (S.C.). 4. Considered the submissions made at length by both sides and perused the records. The undi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emicals Pvt. Ltd. (supra). In that matter, the assessee was a manufacturer. The assessee claimed exemption which was denied by the Department. The assessee went in appeal to CEGAT. Pending appeal, assessee paid excise duty under protest. The assessee succeeded before the CEGAT and claimed refund on 17-1-1991. Refund was denied by the Department. Therefore, it was a case of payment of duty under piurest. However, in the said decision, this Court applied Para 104 of the judgment of the Constitution Bench in the case of Mafatlal Industries Ltd. (supra), which with respect, had no application. As stated above, Para 104 of the judgment in the case of Mafatlal industries Ltd. (supra) dealt with refund consequent upon finalisation of provisional a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable in cases of refund consequent upon adjustment under Rule 913(5). The judgment of this Court in the case of TVS Suzuki Ltd. (supra), therefore, supports the view which we have taken herein above that refund consequent upon finalization of provisional assessment did not attract the bar of unjust enrichment." 5. I also find that the question of attraction of clause of unjust enrichment, on the provisional assessment in respect of customs duty, was before the Tribunal and the Tribunal vide its order in the case of Oriental Exports v. CC, New Delhi - 2001 (127) E.L.T. 578 (Tri-Del.) held that the bar of unjust enrichment is not applicable to the refund arising out of finalization of provisional assessment under Section 18 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nthetics's case (supra) was per incuriam [para 14 at page 52] and approved the decision in the later case, i.e., TVS Suzuki's case (supra). The three-Judge Bench has also taken the same view, as was taken by the Tribunal, to the effect that the doctrine of unjust enrichment is not applicable to the provisional assessment even after the finalization thereof. The point in issue in the present case is, thus, squarely covered by the three Judge Bench decision in Allied Photographics' case [2004 (166) E.L.T. 3 (S.C.) = 2004 (4) SCC 34]. In view of this, the appeals are dismissed and the order passed by the Tribunal is affirmed. No costs." 6. Both the above said decisions of the Hon'ble Supreme Court squarely covers the issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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