2021 (11) TMI 128

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....2 dated 13.11.1995, 1667 dated 18.11.1995, 1873 dated 30.12.1995, 1874 dated 30.12.1995, 1875 dated 30.12.1995, 0003 dated 02.01.1996, 0164 dated 02.02.1996 and 0170 dated 03.02.1996, despite the Commissioner (Appeals) concluding that the Importer had failed to prove that the excess duty had not been passed on to their customers and therefore, that the refund claim is hit by the concept of unjust enrichment?" 2. M/s. Alcaetl Lucent India Private Limited (formerly known by the names of M/s. AT & T Switching India Ltd., M/s. Tata Lucent Technologies Ltd and M/s Lucent Technologies Hindustan Private Ltd.,) ('importer' for short) was engaged in import of goods for manufacture of telecommunication equipment and are the claimant of refund of purported excess payment of customs duty herein. During the year 1995-96, 8 manual bills of entry were filed for import of goods supplied by their overseas suppliers M/s. American Telephone & Telegraph Co., USA and undertook clearance of the goods involved therein on payment of applicable customs duties on the invoice values. At that point of time of import, the related party transactions between the importer and their aforesaid overseas supplier ....

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.... of unjust enrichment issue. Being aggrieved, the appellant preferred appeal before the CESTAT. Placing reliance on the ruling of the coordinate bench decision of this Court in the case of M/s. Mangalore Refinery & Petrochemicals Ltd., vs. Commissioner of Customs, Mangalore reported in 2015 (323) ELT 484 (Kar.), the CESTAT held that the doctrine of unjust enrichment will not be attracted and set aside the Order-in-Appeal impugned therein, directed the authorities to consider payment of refund in cash to the appellant - importer. Being aggrieved, the revenue has preferred this appeal. 5. Learned counsel Sri. Vikram Aditya Huilgol appearing for the appellant - revenue submitted that Section 18 of the Act is not applicable to the present case as there is no difference between the duty determined in the provisional assessment and the final assessment. Distinguishing the case of M/s. Mangalore Refinery & Petrochemicals Ltd., supra, it was submitted that the amendment brought to Section 18 with effect from 13.07.2006 would not have any bearing to the case on hand. 6. Learned counsel Smt. Neethu James along with Sri. Mohammed Ibrahim representing the learned counsel Sri. Ravi Raghav....

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.... of such information or completion of such test or enquiry, be assessed provisionally if the importer or the exporter, as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty finally assessed and the duty provisionally assessed. (2) When the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, then - (a) in a case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of, or is in excess of [the duty finally assessed], the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed 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." 10. The amended Section 18 of the Act whereby sub-sections (3), (4) and (5) have been inserted with effect from 13.07.2006 by the Taxation Laws (Amendm....

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....es 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. The provision of unjust enrichment was conspicuously missing in Section 18 of the Act. It was by way of amendment which came into effect from 13.07.2006 the said provisions contained in sub-section (2) of Section 27 of the Act, was added to Section 18 by way of subsection (5). Thus, it has been held that Sections 18 and 27 are merely exclusive. It has been further held that the refund claims consequent upon finalization of provisional assessment does not attract the bar of unjust enrichment for the period prior to the amendment of 2006. 12. The CESTAT has analyzed Section 18 of the Act vis-à-vis post amendment and placing reliance on the judgment of M/s. Mangalore Refinery & Petrochemicals Ltd., supra, concluded that the assessments were indeed made provisionally subject to SVB clearance of the invoice values at which the appellant had taken imports from their principals. The argument of the revenue that the refund claim made by the importer was not on account of finalization of the provisional assessment but on account of excess paymen....