2011 (1) TMI 1098

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....r Notification No. 21/2002-Cus., dated 1-3-2002, on tariff value of USD 415 PMT. Both bills of entry, including one under DEPB scheme, were assessed provisionally. With effect from the same date i.e. 31-1-2006 vide Notification No. 7/2006-Cus., (N.T.) the Government reduced the tariff value Crude Palm Oil from USD 415 PMT to USD 412 PMT. In absence of communication as regards to issuance of the notification the bills were provisionally assessed at the rate of USD 415 PMT. The Asst. Commissioner, on filing of refund claims by the appellants, sanctioned the refund of excess duty collected, by way of speaking orders, holding that the bar of unjust enrichment was not applicable in the present case since the goods were in the warehouse on the da....

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.... the Hon'ble Supreme Court in the case of UOI v. Solar Pesticides, 2000 (116) E.L.T. 401 (S.C.)], held that the appellant has failed to produce any contrary evidence that the incidence of duty has not been passed on to the customers. Coming to such conclusion, he dismissed the appeal filed by the appellant. Hence, this appeal. 3. Ld. Consultant appearing on behalf of the appellant submits that the ld. Commissioner (Appeals) has misdirected himself. It is the submission that the Bills of Entries were dated. 31-1-2006 and they were provisionally assessed and on the very same day, they were finally assessed being there was reduction in the tariff on the same day. It is his submission that they have filed refund claims within time and t....

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....missions made by the appellants. The refund of duty is governed by the provisions of Section 27 of the Customs Act, 1962 which stipulates for scrutinizing all refund claims in terms of unjust enrichment. In the instant case, there is no dispute that the refund claim was submitted within the stipulated time period. With regard to the refund claim, Section 27(2) of the Customs Act, 1962 says that any duty or interest, if any paid, is refundable to the applicant provided the amount of duty and interest, if any, paid on such duty as determined by the Asst. Commissioner of Customs under the foregoing provisions of Section 27(2) ibid, shall, instead of being credited to the fund, be paid to the applicant, if such amount is relatable to, among oth....

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....e seen from the above reproduced findings that the ld. Commissioner (Appeals) has not addressed himself to the issue in hand in a proper perspective. It is undisputed that the provisions of Section 18 talks about provisional assessment of bills of entries and any refund or shortage of duty due to finalization of bills of entries has to be made good. In this case, the entire exercise of provisional assessment of bills of entries and finalization of the same took place on 31-1-2006. It is also seen that during the relevant time, Section 18 of the Customs Act did not have the clause of unjust enrichment. Clause of unjust enrichment was inserted in Section 18 w.e.f 13-7-2006 which reads as under :- "(5) The amount of duty refundable under su....