9911796707
TMI Blog2024 (12) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... he actual quantity discharged was less by 311837.03 MMBTU - Goods not unloaded and exported back do not qualify as 'imported goods' under the Customs Act, 1962. Whether the element of unjust enrichment is required to be examined, and if so, whether these have been properly examined based on documentary evidence submitted by the appellants as required under Section 18/27 of the Customs Act, 1962? - HELD THAT:- The appellants have submitted the complete details of Annual accounts with suitable explanation in terms of Note 12 and 18 to state that amount of refund claim on account of various issues have been duly shown in the balance-sheet under the head Assets (non-current assets and current assets) and further, they have not passed on the duty burden to any other person, on the quantity of LNG which was not unloaded and the duty was initially paid provisionally for total quantity - the various details including ledger accounts, Chartered Accountant s certificate dated 18.06.2013, 06.07.2013 08.04.2014 have to be read together with complete financial records submitted, in order to arrive at whether the elements of unjust enrichment have been fulfilled or not. The refund of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Limited (GAIL) had purchased 1960086.950 MMBTU [85,000 cubic meters] of Liquefied Natural Gas (LNG) on high sea sale basis from GAIL. Initially, GAIL had in turn had purchased and imported 30,00,000 MMBTU [1,29,500 cubic meters] of LNG from Excelerate Energy Limited, Woodlands, Texas, USA, who is the supplier located abroad, and out of which 1960086.950 MMBTU [85,000 cubic meters] of LNG alone was sold by GAIL to RGPPL on high sea sale basis. Upon arrival of the vessel carrying LNG at the port of import, both RGPPL and GAIL, respectively had filed Bills of Entry (B/Es) for their imports. RGPPL had filed B/E bearing No. 04/2011-12 dated 27.03.2012 for provisional assessment on the basis of Bill of Lading no. 20120301 dated 06.03.2012, for quantity of LNG purchased by them on high sea sale basis from GAIL i.e., 1960086.950 MMBTU [85,000 cubic meters] of LNG. Further, a separate B/E No. 05 dated 30.03.2012 had been filed by GAIL for import of balance 935921.750 MMBTU [44,500 cubic meters] of LNG by them, which is not a subject matter in this case. As per assessment practice followed by the Customs authorities at the port of import for LNG imports, RGGPL had paid Rs. 7,79,37,340/- t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs/Assistant Commissioner of Customs, Dapoli Division, to reflect the quantity which was unloaded and discharged for home consumption clearance. Vide Order dated 15.03.2013, the Assistant Commissioner had finalized the provisional assessment and assessed the final customs duty payable in respect of the actual quantity of 311837 MMBTU [12844.651 cubic meters] unloaded at the port of import as Rs.4,72,98,000/-, as against Rs.7,79,37,340/- paid at time of provisional assessment for the entire quantity of 1960086.950 MMBTU [85,000 cubic meters]. 5.2 Pursuant to the above Order dated 15.03.2013, RGPPL had filed application for refund of excess amount of customs duty paid during provisional assessment i.e. Rs.3,06,39,340/- [7,79,37,340 4,72,98,000] vide their letter dated 22.07.2013 which is subject matter of present appeal. This refund represents duty paid on LNG which was not unloaded and not cleared for home consumption. 5.3 In pursuance to the finalization of assessment of the impugned B/E dated 27.03.2012 vide Order dated 15.03.2013, the appellants have filed refund application seeking refund of customs duty paid in excess to the amount of duty finally assessed viz., refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chartered Accountant s certificate and the Books of Account for the relevant period, to consider the element of unjust enrichment and thereafter passed the refund order to the appellants for the above amount, he had adjusted the amount of Rs.2,75,99,349/- being an amount eligible for refund on account of the Order-in-Appeal dated 16.09.2013 being accounted in such CA Certificate and therefore allowed refund of Rs.30,39,991/- only, being the balance amount (Rs.3,06,39,340 - Rs.2,75,99,349 = Rs.30,39,991/-). 7.2 In this regard, we find that the appellants have submitted the complete details of Annual accounts with suitable explanation in terms of Note 12 and 18 to state that amount of refund claim on account of various issues have been duly shown in the balance-sheet under the head Assets (non-current assets and current assets) and further, they have not passed on the duty burden to any other person, on the quantity of LNG which was not unloaded and the duty was initially paid provisionally for total quantity. We find that the various details including ledger accounts, Chartered Accountant s certificate dated 18.06.2013, 06.07.2013 08.04.2014 have to be read together with complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals). 8. We also find that there is force in argument made by the learned Advocate for the appellants that in respect of provisional assessment of duty, pending discharge of the imported goods, and when the entire quantity has not been actually discharged, the claim of unjust enrichment does not apply to such cases of goods not unloaded/short landed, by relying upon the orders passed by the co-ordinate Bench of this Tribunal in the cases of Petronet LNG Ltd. Vs. Commissioner of Customs, Ahmedabad 2012 (275) E.L.T. 568 (Tri-Ahmd.) and Commissioner of Customs, Ahmedabad Vs. Hazira LNG Pvt. Ltd. Final Order No. A/11473/2017 dated 20.07.2017. We also find that the order of the Tribunal Hazira LNG Pvt. Ltd. (supra), was upheld by the Hon'ble High Court of Gujarat in the judgement delivered on 15.02.2018. 9. In view of the aforesaid discussions, we find that the issue needs to be examined in detail on the above aspects by examining the legal provisions relating to refund of provisionally assessed duty at the time of finalization under Section 18 of the Customs Act, 1962; judicial pronouncements of the Hon ble High Court of Ahmedabad and the Orders of the Tribunal as well as the var ..... X X X X Extracts X X X X X X X X Extracts X X X X
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