TaxTMI 
TaxTMI 
2015 (2) TMI 1136
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....try with Nil rate of duty, the Customs authorities insisted on payment of National Calamity Contingent Duty (NCCD). This was contested by the appellant. The issue was finally decided vide Board's Circular No. 22/05/2006, dated 21-8-2006 stating that NCCD is leviable on imports under Advance License Scheme. The appellant wanted to pay NCCD under protest. However, the EDI system could not process the payment of NCCD. Meanwhile, the validity of Customs Warehousing Bond period under Section 59 of the Customs Act and the period of Advance License expired. The Customs Bond period was extended up to 31-3-2008, but the extension of validity of advance license remained under consideration of DGFT. As the Customs did not extend the Bond beyond 31-3-2008 as per letter F. No. S/7-Gen-17/07/Oil, dated 27-3-2008 of Assistant Commissioner of Customs, the appellant was persuaded to pay the Basic Customs Duty (which would have been zero against advance license) before 31-3-2008. 3. Heard both sides. 4. The learned Counsel stated that the advance licenses were later got revalidated by DGFT up to July, 2008. Further, Joint Secretary (Drawback) vide letter F. No. 605/87/07-DBK, dated 1....
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....e Hon'ble Supreme Court decision in the case of Pratibha Processors - 1996 (88) E.L.T. 12 (S.C.). According to him, the Commissioner (Appeals) has not given any finding on this issue. 4.3 On the issue of unjust enrichment, he stated that the price of finished petroleum products are not determined on cost basis but are fixed on import parity basis. Therefore, unjust enrichment will not be applicable. According to the learned Counsel, entire production was exported and therefore, the issue of unjust enrichment does not arise. 5. The learned AR appearing on behalf of the Revenue reiterated the findings of the Commissioner (Appeals). He relied on the Hon'ble Supreme Court judgment in the cases of Flock India Ltd. - 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries - 2004 (172) E.L.T. 145 (S.C.), which held that refund is not payable if the assessment was not challenged. 5.1 On the issue of unjust enrichment, the learned AR stated that the refund will be hit by unjust enrichment unless the appellant establishes that the duty paid was shown as receivable in their balance sheet. He relied on the decision of the Tribunal in the case of HPCL v. Commissioner of C....
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....s have the power to amend the license with retrospective effect from the date of granting the license. While passing the judgment, Hon'ble Court also observed that amendments carried out by DGFT cannot be challenged by the Customs Authorities. We note that in the present case of the appellant-HPCL, there, is no change in the condition of the license nor are any conditions violated. The issue lies in a much narrower domain, i.e., the validity of a license with retrospective effect, whereas in the case of Bhilwara Spinners (supra), the matter involved substantial amendment. Following the Bhilwara Spinner's judgment, we hold that the Advance License should be treated as valid on the date of ex-bonding of the goods and, therefore, duty is not payable. 5.1 We would like to note that, had Customs allowed extension of the Bond period beyond 31-3-2008 (which was denied by their letter dated 27-3-2008), there would have been no problem for the appellant to wait till the Advance Licenses were got revalidated. Therefore, the appellant suffered only because the Customs refused to extend the Bond period beyond 31-3-2008. No reason has been given in the letter F. No. 7/7/Gen/17/2007(Oil)....
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....of Flock India (supra) and Priya Blue Indus. (supra) holding that the judgments will not apply when there is no assessment order, which is appealable. Therefore, following the judgments in the case of Karnataka Power (supra) and Aman Medical Products (supra), we hold that the appellants are eligible for refund. 5.4 The next aspect to be considered is whether the refund claim is hit by the bar of unjust enrichment. The Revenue has referred to the case of HPCL (supra) holding that if the claimant himself has treated the refund amount due as expenditure and has not shown the same as receivable, the claimant cannot be said to have passed the test of unjust enrichment. In the present case, the appellant have not denied that the duty paid was shown as expenditure and form part of the Profit & Loss account. The appellant, however, have referred to the case of Flow Tech Power - 2006 (202) E.L.T. 404 (Mad.) and the case of Cummins India - 2008 (221) E.L.T. 525 (T) in support of their stand that even if duty paid is shown as expenditure, the same is not a sufficient evident to show that the duty has been recovered from the customers. We have seen these case laws. The judgments, held ....