TaxTMI 
TaxTMI 
2015 (4) TMI 729
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....s. 28,99,492/- against revenue deposit made during the provisional assessment of 100 bills of entry. The original authority dealing with the appellant's refund application has held that the provision of 'unjust enrichment' is applicable. The appellant did not produce CA certificate and also not submitted company's audited balance sheet certified by CA evidencing the fact that the incidence of such refund amount has not passed on. Accordingly, since, the appellant could not produce any evidence to pass the test of unjust enrichment, adjudicating authority has rejected the refund claim. Being aggrieved, appellant filed appeal before the Commissioner (Appeals), wherein the appellant has taken stand that in case of refund of rev....
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....I [2007 (213) E.L.T. 281 (Tri-Bang)] - Commr. of Cus. Bangalore Vs. Ecomaster (I) Pvt. Ltd. She submits that in all the above judgments it has been consistently held that the bar of unjust enrichment in the case of Revenue deposit is inapplicable because the revenue deposit is not custom duty. Ld Counsel draws my attention to the copy of the balance sheet as on 31 March 2011, wherein an amount of Rs. 13,42,143/- is shown under the subhead as 'balance with custom authority' under main head of 'loan and advances'. 3. On the other hand, Shri. M.S. Reddy, Ld. Dy. Commissioner (A.R.) appearing for the Revenue reiterates the findings of the impugned order and submits that refund of any amount irrespective of duty or otherwise, ....
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.... custom duty which was assessed provisionally and therefore the amount of 1% Revenue deposit become refundable. On the issue whether this refund has to pass through the test of unjust enrichment, I agree with Ld. A.R., that this particular refund arises out of the final assessment of the bill of entry and correctly governed by Section 18 of Customs Act, 1962. Prior to 2006 there was no explicit provision of unjust enrichment in respect of refund payable on the final assessment under Section 18 of Customs Act, 1962, however, w.e.f. 13/7/2006 subsection 5 was inserted under Section 18, which is reproduced below: SECTION 18. Provisional assessment of duty. (1) Notwithstanding anything contained in this Act but without prejudice to the provis....
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....in the case of warehoused goods, the proper officer may, where the duty finally assessed or re- first day of the month in which the duty is provisionally assessed till the date of payment thereof. (4) Subject the sub-assessed, as the case may be, is in excess of the duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal to twice the amount of the excess duty. (3) The importer or exporter shall be liable to pay interest, on any amount payable to the Central Government, consequent to the final assessment order or re-assessment order under sub-section (2), at the rate fixed by the Central Government under section 28AB from the Section (5), if any refundable amount referred to in clause (a) of sub-....
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....gment of Commr. of Cus. Vs. Hindalco Industries Ltd (supra) Hon'ble High Court of Gujarat held as under: 18 On a plain reading it becomes apparent that sub-sections (3) and (4) relate to liability to pay interest or entitlement to claim interest consequent upon final assessment order. However, sub-section (5) is the material amendment which indicates that the Proviso appearing below sub-section (2) of Section 27 of the Act has now been incorporated as a part of Section 18 of the Act. On a plain reading the distinction between Section 18 as it stood prior to amendment i.e. upto 12.7.2006 and subsequent to the amendment i.e. with effect from 13.7.2006 becomes apparent. The difference is stark and revealing and it is not possible to agree....
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....12.7.2006. It is not possible to state that the provisions for payment of interest on duty short levied or entitlement to interest on duty paid in excess of the finally assessed duty can be considered to be clarificatory provisions and in the same vein the newly inserted sub-section (5) deserves consideration. Thus in effect upto 12.7.2006 no provision existed in Section 18 of the Act which would permit revenue to invoke principles of unjust enrichment in relation to duty paid in excess, found to be so, upon finalization of provisional assessment under Section 18 of the Act. From the above observation of the Hon'ble High Court, it becomes clear that bar of unjust enrichment is applicable to the refund of revenue deposit also by virtue ....