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TMI Blog2024 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... as Natural Gum Arabic . These observations are sufficient for us to hold with appellant has failed to establish its eligibility of claiming the benefit of exemption from payment of CVD in terms of CBEC clarification dated 28.06.2007. Thus, the CVD self-assessed has rightly been paid. No situation arise for refund of same - issue stands decided against the appellant. Whether the refund claim is rightly rejected on the ground of limitations and that of unjust enrichment ? - HELD THAT:- In the present case apparently and admittedly the appellant has not modified the self-assessment vis-a-vis the impugned amount of CVD. Also, the claim is not covered under proviso to section 27 of the customs Act, 1962. Thus the appellant is not entitled to claim the refund without such modification and the claim is otherwise barred by limitation - The doctrine of unjust enrichment is that no person can be allowed to enrich equitably at the expense of another. Thus if the assessee has passed the burden of duty paid to the consumer the assessee is not allowed to enrich at the expense of said consumer. The duty was paid at the time of clearance of the imported goods to the domestic market. There is no ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been filed after the expiry of one year from the date of payment of duty of Customs duty as Contrary to section 27 of the Customs Act, 1962. Also, No evidence was produced by the appellant to prove that they have not passed the burden of said amount of Customs duty (As mentioned in the refund claim). Based on these observations a Show Cause Notice No. 17/2018-19 dated 20.02.2019 was served upon the appellant proposing to reject the refund claim of Rs. 50,64,477/- as was filed on 31.01.2019. The Original Adjudicating Authority vide Order in Original (O-I-O) bearing number 01/2019 dated 22.04.2019, rejected the refund claim holding it to be filed beyond the period of limitation. However, with respect to Bill of Entry No. 117 dated 31-10-2011, 146 dated 31.12.2011, 44 dated 15-03-2012, 89 dated 09-05-2012, 25 dated 13-02-2012 and 69 dated 16-04-2012, Since the duty was paid under protest by the importer, it was held that the limitation of one year is not applicable in respect of these Bills of Entry. But, the refund claim w.r.t these Bills of Entry was still rejected on the ground of unjust enrichment . The order rejecting the entire refund claim has been upheld by Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also on the grounds of limitations as stipulated in Section 27 of the Customs Act and on the principle of unjust enrichment . The order under challenge is accordingly prayed to be upheld and appeal is prayed to be allowed. 5. Having heard the rival contentions and perusing the record of the present appeal we observe and hold as follows: The appellant had filed the refund claim dated 30.01.2019 seeking refund of amount of countervailing duty(CVD) while importing goods declaring those goods as Natural gum in raw form vide Bills of Entry filed during the year 2011 to 2014 (As tabulated in show cause notice itself). The impugned refund claim was filed based on CBEC clarifications dated 28.06.2007 Based on the said clarification only the appellant had earlier filed a protest against the CVD paid at the relevant time. In light of these facts, following Two questions need adjudication: 1) Whether in terms of CBEC clarification dated 28.06.2007 the appellant is entitled for exemption from payment of CVD while importing Natural gum in raw form and is thus, eligible for refund of the amount already paid by appellant. 2) Whether the refund claim is rightly rejected on the ground of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of one year from the date of payment of such duty or interest provided this period of limitation shall not apply where any duty or interest has been paid under protest. Though the appellant has taken the plea that protest was filed by the appellant. But we observe that the CVD was paid by the appellant as self-assessed at the time of filing of respective Bill of Entry (34 Bills of Entry are in question), Those BoEs were filed during the period from Oct-2011 to Sep-2014. No protest was admittedly made by the appellant at the said relevant time. Any subsequent letter of protest, to our understanding, is not relevant for the purpose of the aforementioned proviso to section 27 of the Customs Act. Signing of the Bill of Entry itself amounts to passing an order of assessment as it was held by Hon ble Supreme Court in the case of Escorts limited vs. Union of India and others reported as 1998(97) ELT TO 11 (S.C.) The Hon ble Supreme Court, in another decision in the case of Priya Blue Industries limited vs Commissioner of Customs (Preventive) reported as 2004 (172) ELT 145 (SC) held that so long as the order of assessment stands, the duty would be applicable as per that order of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has not modified the self-assessment vis-a-vis the impugned amount of CVD. Also, the claim is not covered under proviso to section 27 of the customs Act, 1962. Thus we hold the appellant is not entitled to claim the refund without such modification and the claim is otherwise barred by limitation. 10. Coming to another ground of rejecting the impugned claim i.e we hold: unjust enrichment The appellant has mentioned that duty was paid under protest hence, present is not the case of unjust enrichment but it is observed that countervailing duty was self-assessed and was paid at the time of filing the impugned Bills of Entry of the year 2011-12 to 2014-15. Protest was raised against payment of CVD by appellant vide subsequent letters. In light of this apparent admitted fact the contentions of appellant is not sustainable. The doctrine of unjust enrichment is that no person can be allowed to enrich equitably at the expense of another. Thus if the assessee has passed the burden of duty paid to the consumer the assessee is not allowed to enrich at the expense of said consumer. As already observe above, duty was paid at the time of clearance of the imported goods to the domestic marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jeevan Reddy, J., the State should refrain from conferring an unearned and unjustifiable windfall upon the assessees. 13. On the issue of remedies, all the three substantially concurring opinions in Mafatlal, namely, those of Jeevan Reddy, J., Paripoornan, J. as well as Ahmadi, C.J., divide the situations in which claims for refund may be preferred by an assessee into three categories, viz.: First, where the statutory provision ( law ) under which the tax is levied is itself challenged by the assessee on the ground of being violative of some provision of the Constitution, i.e., an unconstitutional levy. In this class of cases, the claim for refund arises outside the provisions of the Act, for this is not a situation contemplated by the Act. Second, where the tax is collected by the authorities under a statute by misconstruction or wrong interpretation of the provisions of the Act, Rules or Notifications or by an erroneous determination of the relevant facts, i.e., an illegal levy. In this class of cases, the claim for refund arises under the provisions of the Act. In other words these are situations contemplated by and provided for by the Act and the Rules. Third, where an asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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