TaxTMI 
TaxTMI 
2018 (6) TMI 648
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.... the duty under protest and cleared the consignments and challenged the assessment orders. 3. The dispute regarding the benefit of exemption under Sl.No. 313 of Notification No. 21/2002 to fixed wireless telephones ultimately reached the Apex Court and vide judgment dated 13.12.2005 reported in 2006 (194) ELT 11 (SC), the Hon'ble Supreme Court held that the product is eligible for exemption under the notification and quashed the assessments to the contrary. 4. Pursuant to the above judgment of the Apex Court in respect of various Bills of Entry, the appellants sought refund of the excess customs duty paid by them. Refund claimed in respect of the period November 2002 to August 2003 was allowed by the adjudicating authority except in respect of one Bill of Entry dated 22.11.2002 which was rejected as being time-barred. The department filed appeal against the sanction of refund claim before Commissioner (Appeals) requesting to examine the issue with regard to unjust enrichment. The appellant, however, did not prefer any appeal against the rejection of refund claim in respect of one Bill of Entry on the ground of time-bar. The Commissioner (Appeals) vide Order-in....
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....es provided by them. The charges recovered by the appellants from their customers for providing the telecom services is governed and regulated by TRAI. The appellant cannot collect any amount over and above the charges fixed by TRAI and therefore the question of passing of burden of customs duty does not arise. 7.3 He submitted that the Commissioner (Appeals) has directed the adjudicating authority to examine the issue of unjust enrichment on the basis of the provisions of Section 18(5) of Customs Act, 1962. The said provision was introduced only with effect from 13.7.2006, and does not have retrospective application. All the refund claims have been filed before 13.7.2006 and therefore the said provision cannot be applied. 7.4 In respect of refund claims filed for the period November 2002 to August 2003, which is challenged in Appeal No. C/ 190/2010, the period involved, the date of refund claim as well as the final assessment is prior to 13.7.2006. Therefore, the said section cannot be applied to examine unjust enrichment. 7.5 In respect of Bills of Entry for the periods November 2004 to December 2005 as well as March 2005, the refund applications were f....
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....sue of unjust enrichment. 7.8 The refund claim having been filed by the appellant prior to 13.7.2006 merely because the department took a long time to process the application for refund, the right of the appellant could not be denied by subsequent amendment in the Act. He relied upon the decision in the case of Commissioner of Central Excise Vs. TVS Suzuki Ltd. 2003 (156) ELT 161 (SC). 7.9 The Id. counsel was fair enough to advert to the decision rendered by the jurisdictional High Court in the case of Commissioner of Customs Vs. Scientific Instruments 2014 (307) ELT 83 (Mad.) and submitted that in para 10 of the said judgment, the Hon'ble High Court relied upon the decision in the case of Mafatlal Industries Ltd. 1997 (89) ELT 247 (SC) observing that unless the assessee establishes that he has not passed on the burden of duty to another, he would not be entitled to refund. The said decision has been appealed before the Hon'ble Supreme Court. 7.10 Without prejudice to the above arguments, Id. counsel submitted that in any case the appellant has produced Chartered Accountant's certificate to establish that the incidence of duty has not been pas....
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....for examining the issue of unjust enrichment. The Id. counsel has taken various pleas which have been narrated in detail in the above paragraphs. The Hon'ble High Court in the case of Scientific Instruments (supra) observed as under:- "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 paragraph 6.2 has to be set aside. The Tribunal pointed out that the order of the Tribunal dated 9-7-2007, the provisional assessment finalized in the year 2000 was set aside resulting in a refund to be made to the assesseee The Tribunal pointed out that on account of such finalisation of the provisional assessment, excess amount to be paid to the assessee was ordered to be refunded prior to 1-8-1998. To this end, it referred to the decision of the Larger Bench of the Tribunal in the case of Hindustan Zinc Ltd. (cited supra) that prior to 13-7-2006, which became due on final assessment is to be made without the claim being submitted by the assessee and applying the unjust enrichment, proportionately refund has to be granted. 10.....