TaxTMI 
TaxTMI 
2014 (12) TMI 530
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....ovision Section 28D to be read with Section 27 of the Customs Act, 1962 and hold that unjust enrichment is not applicable to subject case". 2. The respondent imported Microwave passive items and filed Bills of Entry on 29-11-1996 claiming exemption under Notification No. 36/96-Customs. The Department was of the prima facie view that the said Notification was not applicable to import made and consequently, the assessment was made on provisional basis without extending the benefit of the Notification. The respondent/importer paid Rs. 6,05,000/- and covered the balance duty amount by Bank Guarantee. The importer filed appeal before the Customs, Excise and Service Tax Appellate Tribunal and the Tribunal allowed the appeal and held that ex....
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.... 18(2)(a)of the Customs Act, 1962 indicates that only on finalization of assessment, the liability to pay differential duty or refund as the case may arise and in the case of respondent/importer, provisional assessment was made during January 1997 and therefore, the Department rightly denied the benefit of exemption under Notification No. 36/96-Customs and before final assessment, the importer filed an appeal and the assessment continued to remain provisional and it was finalised on 16-7-2008 extending the exemption under Notification No. 36/96-Customs, thus, as per the order of the Tribunal and as a consequence of which, refund claim arose only after 16-7-2008, which is after the insertion of unjust enrichment provision under Section 18 of....
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....ge before the First Appellate Authority and the Tribunal, by order dated 11-7-2007 set aside the assessment finalised by the Original Authority, which was against the assessee. Therefore, it held that the excess amount is required to be suo motu refunded as held by the Larger Bench of the Tribunal in the decision in the case of Commissioner of Customs, Kandla v. Hindustan Zinc Ltd. reported in 2009 (235) E.L.T. 629 (Tri.-LB) 5. We have heard learned counsel appearing for the parties and perused the materials placed on record. 6. The question that falls for consideration is as to whether the respondent/importer is automatically entitled to refund claim solely on the ground that provision for unjust enrichment was incorporated und....
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....writ or suit is entertained and is allowed/decreed - then, any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) reagitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation." Further, the Supreme Court in the case of Mafatlal Industries Ltd., (supra) observed the nature and the character of refund claims under the Central Excises and Salt Act and the Customs A....
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....quity, he must prove that there is no unjust enrichment and that the liability had not been passed on to the customer. That being the case, refund is not automatic one merely on the score of provisional assessment being followed by final assessment and unless and until the assessee substantiates the claim backed by the proof that the liability has not been passed on to the customer, such a refund claim may be termed as unjust and the claim cannot be granted as a mere consequence for refund arising on final assessment. 9. Learned counsel appearing for the importer/assessee submitted that having regard to the above said observation of the Apex Court in the case of Mafatlal Industries Ltd., (supra) the observation by the Tribunal in para....