2014 (7) TMI 1069

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....adjudicating authority as time barred under the provisions of Section 27, read with Section 18, of the Customs Act, 1962. 2. Shri W. Christian (Advocate) appearing on behalf of the appellant argued that the refund claim of the appellant is not time barred. It was his case that after finalization of provisional assessment, as per letter dt.22.02.2008 written by Deputy Commissioner of Central Excise & Customs, Division-IV, Vadodara-I, appellant was found to have excess paid an amount of Rs. 21,20,013/-. It was the case of the appellant that in case of duty found to be paid in excess at the time of provisional assessment, Revenue was required to refund the amount without any refund application filed by the appellant. That as no refund appli....

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....ase of Commissioner of Customs Vs Indian Oil Corporation (supra). The facts of that case and the issues before Delhi High Court were as per Paras 3 to 6 and reproduced below:            3. The respondent imported petroleum crude oil by two bill of entries dated 24-8-1998 and 2-2-1999. The said bill of entries were provisionally assessed under the Customs Act, 1962 (Act, for short) as the documents regarding FOB value and the freight payable for the crude oil were not available. At the time of provisional assessment, the respondent-assessee had deposited Rs. 6,42,02,664/- and Rs. 10,23,71,807/-. 4. The two bill of entries mentioned above were finally assessed on 21.6.1999 and 15.6.1999 ....

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....sp;     (1) The orders dated 21-6-1999 and 15-6-1999 were not?communicated to the respondent-assessee. This factual finding is not disputed before us.          (2) Section 18 and not Section 27 of the Act is applicable.           (3) Under Section 18, the respondent-assessee was not required to?(3) file any application for refund and refund should have been paid suo moto by the appellant.         (4) Principle of unjust enrichment is not applicable as the?(4) provisions relating to unjust enrichment were incorporated in Section 18 w.e.f. 13-7-2006 and do not have retrospective effect. 3.1 Ho....

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....essed Rs. 0 According to Assessee correct duty payable Rs. 60   In this case, admitted amount of refund of Rs. 30 would be returned and if the Assessee seeks to claim Rs. 10 also (Rs. 70 - Rs. 60) as refund, then Explanation II would apply and the said claim is to be preferred within six months from the date of adjustment of duty. This position is precisely dealt with and explained in the second portion of paragraph No. 104 of Judgment in case of Mafatlal Industries (supra). 20. The two situations are relevant and important. In the first situation the assessee has paid provisional duty which gets reduced on final assessment. The assessee, therefore, becomes entitled to refund which is payable in terms of Rule 9B of th....