TaxTMI 
TaxTMI 
2007 (11) TMI 134
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.... assessed provisionally and the duty so assessed amounting to Rs. 11,50,851/- was paid. The provisional assessment was subsequently finalized, and the assessee became entitled to refund of Rs. 94,654/-. The original adjudicating authority held that on finalization of provisional assessment, the importer of the goods should pay the differential duty or entitled to refund, as the case may be, and accordingly he sanctioned refund in this case. On appeal by the department, the Commissioner (Appeals) has also held a similar view and rejected the appeal by the department. 3. The Id. DR. after taking us through the grounds of appeal, relies on the decision of the Hon'ble High Court of Bombay in the case of Bussa Ove....
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....8 w.e.f. 14-7-06. 5.2 The relevant portion of the order of the Tribunal in the case of Hindalco Inds Ltd. are as follows: "5. The amount of duty refundable under sub-section (2) and the interest under sub-section (4) if any, shall instead of being credited to the Fund, be paid to the importer or the exporter, as the case may be, if such amount is relatable to: (a) the duty and interest, if any, paid on such duty by the importer or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and ....
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...."These appeals have been filed by the Revenue. The Tribunal, in the impugned order, following its earlier decision, in Messrs Needle Industries India Ltd. v. Commissioner of Central Excise [1998 (101) E.L.T. 286 (T)] has taken the view that the doctrine of unjust enrichment is not applicable to provisional assessment in terms of Section 18 of the Customs Act which is similar to Rule 9B of the Central Excise Rules. A two-Judge Bench of this Court in CCE, Mumbai v. Allied Photo- graphics India Ltd. [2004 (163) E.L.T. 401 = 2004 (4) SCC 55] noticing the inconsistency, doubted the correctness of two decisions rendered by three-Judge Bench of this Court in, i.e. (i) Sinkhai Synthetics & Chemicals (P)....
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....ction 18 of the Customs Act, 1962. 7. Coming to the factual matrix of this case, it is seen that the refund claim of Rs. 1,11,187/- and refund claim of Rs. 20,746/- arising out of finalization of bill of entry, which were finalized by the authorities on 1-3-2006 and on 15-3-2006. This would indicate that the amount of the refund claim will be covered by the provisions of Section 18 as they stood prior to amendment of said section on 14-7-2006. The Hon'ble Supreme Court in the case of CCE, Chennai v. TVS Suzuki Ltd. (supra), held as under "Shri Verma fairly concedes that the proviso introduced in sub- rule (5) of Rule 9B cannot be said to be retrospective in operation. He, however, contends that on the date ....