2015 (5) TMI 768

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.... 2. The assessee is an Oil Refinery in Mangalore where crude petroleum is refined and diverse kinds of petroleum products are manufactured. For the purpose of refining, the assessee is importing crude oil falling under Chapter Heading 2709.00 of the First Schedule of the Customs Tariff Act, 1975. During the period in question i.e., 13.1.1986 to 15.3.1988, the crude oil was a canalized item, which could be imported through a canalizing agency designated by the Central Government. Around January, 2000, the assessee started importing full consignments of bill of lading and started importing certain consignments directly instead of importing through Indian Oil Corporation Ltd (IOCL). There was no change in methodology of determining the value w....

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....ssessee depending on whether the price quoted by the supplier and the canalizing agent is in FOB, C & F or CIF. 4. The assessee filed a detailed statement showing the full particulars of the import consignments in question and requested the Customs Authorities to finalise the assessment under Section 18(2) of the Customs Act, 1962 (for short hereinafter referred to as 'the Act'). In these statements, the assessee had shown the quantities also as per shore tank basis and sought for re-determination of the quantities to be adopted for the purpose of final assessment and to finalize the assessments accordingly. The assessee has been showing that he is paying the customs duty in respect of the import consignments in the books of acco....

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....ppeal. Aggrieved by the said order, the assessee is in appeal. 8. The substantial question of law that arises for our consideration in these appeals is: "Whether the doctrine of unjust enrichment inserted by way of Sub-section (5) of Section 18 of the Act with effect from 13.7.2006 was applicable to refund under Section 18 prior to the amendment in view of Section 27(2) of the Act?" 9. Section 18 of the Act reads as under: "18. Provisional assessment of duty. - (1) Notwithstanding anything contained in this Act but without prejudice to the provisions contained in section 4- (a) where the proper officer is satisfied that an importer or exporter is unable to produce any document or furnish any information necessary for the a....

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....he duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal to twice the amount of the excess duty. 2[(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 under sub-section (2), at the rate fixed by the Central Government under section 28AB from the first day of the month in which the duty is provisionally assessed till the date of payment thereof. (4) Subject to sub-section (5), if any refundable amount referred to in clause (a) of sub-section (2) is not refunded under that sub-section within three months from the date of assessment, of duty finally, there shall be paid an interest on such unrefun....

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....h the provisions of the Act and the amount paid on such provisional assessment is in excess of the duty finally assessed, the assessee shall be entitled to the refund. Therefore, the obligation is cast on the revenue to make refund of the excess duty paid and collected. 10. Section 27 of the Act provides for claiming of refund of duty. It relates to a claim for refund of duty or interest paid by the assessee or borne by him in a case not falling under the provisional assessment. Sub-section (2) of Section 27 of the Act provides that any excess duty so paid after such determination shall be credited to the Fund. The proviso may be in exception instead of crediting to the Fund, the said amount is payable to the assessee, if the said amount....

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....ction 18 of the Act is independent of refund under Section 27 of the Act. It is for this reason when the Parliament wanted to prevent unjust enrichment, they amended Section 18 of the Act and introduced by way of Sub-section (5) what is contained in Sub-section (2) of Section 27 which includes unjust enrichment. Therefore, it follows prior to the amendment, this doctrine of unjust enrichment was not attracted to refund claim under Section 18 of the Act. 11. In fact this Court had an occasion to consider this aspect in the case of CCE v. ITC Ltd. 2011 (268) E.L.T. 308 (Kar.) where after referring to the judgment of the Apex Court in the case of Mafatlal Industries Ltd. (supra) and CCE v. Allied Photographics India Ltd. 2004 (166) E.L.T. 3....