2007 (1) TMI 389

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.... Per : S.L. Peeran, Member (J) -  This appeal arises from the Order-in-Appeal No. 130/2004-CUS(B), dated 29th November, 2004 by which the Commissioner (Appeals) has set aside the Order-in-Original No. 121/2004 DC/ICD dated 10-8-2004 passed by the Deputy Commissioner of Customs, relating to refund of 1% EDD paid by them. 2. The Commissioner (Appeals) has recorded the findings in Paras ....

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.... Customs, ICD, Bangalore, vide OIO No. 121/2004 DC. ICD, dated 11-8-2004 rejected the refund claim on the grounds of unjust enrichment - stating that, the burden of duty has not been passed on to others, as prescribed by the Hon'ble Supreme Court of India. For coming to this finding, the lower authority has placed reliance on the judgment in Mlahabir Kishore v. State of M.P. [1989 (43) E.L.T. 205 ....

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....tted the said provisional assessment with 1% of EDD and when the said authority after verification of the documents made available and on going through the information furnished, had accepted the declared transaction value vide Order No. F. No. S50/91/2001-SVB, dated 10-2-2003/26-3-2003, whereby enabling the party, the appellants to seek refund of the 1% EDD paid in addition, over and above the le....

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....alized - the bar of unjust enrichment not applicable to refund and recoveries consequent to finalization of provisional assessment. Moreover, in the instant case, the said amount of 1% collected as Extra Duty Deposit was not collected as Customs duty chargeable under Section 12(1) of the Customs Act, 1962, but was held only as a deposit. Now, since the SVB Order dated 10-2-2003/26-3-2003 has final....