TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 326
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....d to provisional assessment and were referred to Special Valuation Branch (SVB). The SVB vide order 23.4.2009 held that the appellant and Cisco Systems Management, Netherlands are related in terms of Rule 2(2) of Customs Valuation (Determination of Prices of the Imported Goods) Rules, 1988. It was ordered that the imports for various years 2000 to 2007 be valued at the percentage of the General Price List (GPL) as indicated in the order. On a request made by the appellant, consequent to SVB order, the Assistant Commissioner of Customs (Air Cargo Complex), Bangalore has finalised the assessment as per the SVB order. It was directed, in respect of appeal Nos. C/21104/2016, C/21105/2016 and C/28399/2013 that the appellants pay differential dut....
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.... were finalised after 13.7.2006 does not result in interest liability as no provision to charge the interest existed at the time of provisional assessment. 2.1 Learned counsel relies upon the following case laws: (i) Commissioner of Customs, Tuticorin vs. CESTAT, Chennai: 2021 (376) ELT 65 (Mad.) (ii) Commissioner of Customs (Preventive) vs. Goyal Traders: 2014 (302) ELT 529 (iii) Beam Global Spirits & Wine (India) P. Ltd. vs. CC, New Delhi: 2018 (360) ELT 142 (Tri. - Del.) (iv) Bhagyanagar Metals Ltd. vs. Commissioner of Central Excise, Hyderaba-II: 2016 (333) ELT 395 (Tri. - LB) (v) M/s. Escorts Heart Institutes and Research Centre vs. CC (Import & General), New Delhi: 2016-TIOL-761-CESTAT-DEL. (vi) Commissioner of Customs vs....
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....terest in terms of Section 18(3) in respect of appeal No.21031/2018, despite the order of stay granted by CESTAT vide Misc. Order dated 7.2.2014, is not correct. Learned counsel also submits that it is incorrect to state, in respect of appeal No. C/20295/2018, that the appellant has not proven that the incidence of duty has not been passed on and therefore, the claim is hit by unjust enrichment; in respect of provisional assessments undertaken before 2006, the clause of unjust enrichment is not applicable as the amendment to Section 18 of the Act was with effect from 13.7.2006. He relies upon the following case laws: (i) Commissioner of Customs vs. Hindalco Industries Ltd.: 2008 (231) ELT 36 (Guj.); (ii) Mangalore Refinery & Petrochemic....
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....differential duty assessed upon final assessment where the goods have been cleared on provisional assessment under Section 18(1) of the Act. The retrospective levy is not intended and the amendment in law is a substantive provision for making a provision for levy of interest in the present case. Therefore, for a period prior to 13-7-2006, such levy of interest cannot be imposed on the Assessee. Therefore, being in respectful agreement with the view of the Gujarat High Court, we do not find any merit in the present appeals filed by the Revenue and the order passed by the Learned Tribunal is correct." 5.1 We also find that Hon'ble Gujarat High Court in the case of Goyal Traders: 2014 (302) ELT 529 (Guj.) have followed the above decision and ....
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....he Tribunal. 5.3 Coming to the issue of applicability of bar of unjust enrichment in respect of provisional assessments before 2006, we find that Karnataka High Court in the Mangalore Refinery & Petrochemicals Ltd.: 2015 (323) ELT 484 (Kar.) have set the matter to rest holding that bar of unjust enrichment is not applicable to the cases of provisional assessments before the amendment in 2006. The Hon'ble High Court held that: "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....
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....ly determined, then he would be entitled to the refund. To claim refund under Section 18 of the Act, the assessee was not expected to invoke Section 27 of the Act. Refund under Section 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." 5.4 In respect of the averments on the issue of refund of duty paid on import of spare parts before 2003, we fi....