TaxTMI 
TaxTMI 
2008 (10) TMI 595
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....(2) of the Customs Act, 1962? (ii) Whether in the facts and circumstances of the case, the Tribunal is justified in allowing the refund claim on the ground that the finalization was done prior to amendment of Section 18 of the Customs Act, 1962 effective from 13-7-2006 and, therefore, the doctrine of unjust enrichment would not be applicable? (iii) Whether in the facts and circumstances of the case, the Tribunal is justified in allowing the appeal by way of remand despite the admitted position that the respondent had not placed any evidence on record to prove that they had not passed the duty incidence on their customers?" 2. The brief facts, giving rise to the present appeal, are that the respondent herein, a Unit of Birla Copper, ha pu....
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.... and Education Cess on CVD amount and they have filed their refund claim of the differential amount of 2% Education Cess on total duty of Rs.1,11,188. The respondent has filed Refund claim of Rs.1,11,188/- on 6-6-2006 pertaining to Bill of Entry No. F-017/05-06, dated 15-4-2005, which was finally assessed by the authorities on 1-3-2006. The Adjudicating Authority vide Order-in-Original held that the respondent assessee was entitled to refund and the refund was sanctioned, but the assessee had not discharged the burden of showing that the incidence of duty had not been passed on to the customers and, therefore, the presumption of unjust enrichment stood unrebutted. The Adjudicating Authority, therefore, credited the sum of Rs. 1,11,187/- to ....
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....to process the application for refund, the right of the appellant does not get defeated by the subsequent amendment made in sub-rule (5) of Rule 9B. The Commissioner of Central Excise and the CEGAT were, therefore, justified in holding that the claim for refund made by the appellant had to be decided according to the law laid down by this Court in Mafatlal Industries Ltd. (supra) and would not be governed by the proviso to sub-rule 5 of Rule 9B" 8. Respectively following the judgments of the Hon'ble Supreme Court in the case of M/s. Oriental Exports (supra) and M/s. TVS Suzuki Ltd. (supra), the refund claims of the appellant which arise due to finalization done prior to amendment of the section 18 are to....
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....ed contrary to law. That the Court should not exercise its powers for unjustly benefiting a person. The decision in the case of CCE v. Allied Photographic India Ltd. - (2004) 4 SCC 34) = 2004 (166) E.L.T. 3 (S.C.) cannot be made applicable as the same was rendered in the context of provisions of Central Excise Act, 1944 and the Rules framed thereunder and therefore, the Tribunal had wrongly placed reliance on the said decision. That Mumbai High Court in the case of Bussa Overseas & Properties Pvt. Ltd. v. UOI, 2003 (158) E.L.T. 135 (Bom.) is the direct decision on the point under the Act and is applicable to the issue raised in the present appeal. That the judgment of Mumbai High Court has been confirmed by Supreme Court as reported in 2004....
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....the said amendment is substantive in nature or is procedural and would thus apply to pending proceedings?" 7. The Division Bench came to the conclusion that the case of Bussa Overseas & Properties Pvt.Ltd. v. UOI, (supra) rendered by the Mumbai High Court cannot be considered to be a correct exposition of law, more particularly when the judgment in case of Allied Photographic India Ltd. (supra), which has been rendered subsequently, was not considered. The Division Bench also held that it is equally well settled that mere rejection of a petition for Special Leave to Appeal cannot be treated as an authoritative pronouncement of law by the Apex Court and, therefore, reliance placed by the Revenue on the note appearing in 2004 (164) E.L.T. A1....