TaxTMI 
TaxTMI 
2008 (7) TMI 370
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....assessment etc. are extracted from the order in original and are given below since the Table facilitates better appreciation of the facts of the case and understanding the problems: Relev-ant B.E. No.& Date Date of final assess-ment B/E Date of receipt of claim in Divi-sion Date of Return to the impo-rter Date of Resub-mission Date of Return to the impo-rter Date of Resub-mission Date of Return to the impo-rter Date of Resub-mission Refund Amount claimed by the importer 3 4 5 6 7 8 9 10 11 12 132/97-98 28-5-97 4-8-98 3-2-99 23-4-99 19-7-2001 17-10-2001 6-11-2001 23-11-2001 20-3-2002 138568 393/97-98 21-10-97 7-8-98 5-2-99 23-4-99 19-7-2001 17-10-2001 6-11-2001 23-11-2001 20-3-2002 19603 456/97-98 17-11-97 6-8-98 8-2-99 23-4-99 19-7-2001 17-10-2001 6-11-2001 23-11-2001 20-3-2002 75290 377/97-98 9-11-97 27-8-98 26-2-99 23-4-99 19-7-2001 17-10-2001 6-11-2001 23-11-2001 20-3-2002 25789 740/97-98 9-3-98 27-8-98 26-2-99 23-4-99 19-7-2001 17-10-2001 6-11-2001 23-11-2001 20-3-2002 ....
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....o discharged from the vessels was found to be less than the quantities mentioned in the respective bills of lading. It is also found that the quantities discharged and cleared are mentioned on the respective bill of entry but neither the appellants nor the adjudicating authorities have explained as to why the issue relating to the duty on the quantity which was found to have been actually discharged which was less than the bill of lading was not taken into account at the time of finalization in which case, refund claims would have been consequential refunds to finalization of provisional assessments. However the fact remains that the appellants filed refund claims in respect of 19 bills of entry. The refund claims were rejected by the original adjudicating authority and the Commissioner (Appeal) on the following grounds: (a) The assessment order has not been challenged and in the absence of the challenge to the assessment order, refund claims cannot be filed. (b) Alternative request of the appellants for consideration of the claims for remission of duty under Section 23(1) of Customs Act, 1962 cannot be considered since the issue should have been raised at the relevant time b....
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....ter confirmation of the foreign supplier, the ITC Ltd. had filed the refund claim. It was note a case of finalization of assessment. Similarly, Star Textile Engg. Works case also did not relate to case where the bills of entry were originally assessed and finalized and thereafter, the refund claim was filed. In Century Textiles & Industries Ltd. case, the appellants had paid duty on the items which were found not to have been received and subsequently, the foreign supplier accepted the lapse and supplied short-shipped goods free of cost which were cleared on payment of duty and refund of duty paid on the earlier consignment which had not taken delivery was made. In Board of Trustees of the Port of Mormugao v. UOI - 1993 (68) E.L.T. 39 (BOM) refund was claimed in respect of short supplied goods which were made good later but duty had not been paid twice. In Tata Keltron Ltd. - 2002 (145) E.L.T. 477 (Tri.-Bang.) case the short-shipment was found during the second check and at the time Of examination it was a case of goods lost after landing but before clearance. In Pratap Steel Rolling Mills case, the issue before the Tribunal was whether refund claim was within time or not. It may b....
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....r remission under Section 23 in view of conclusion that the refund claims can be filed under Section 27 and none of the claims are time-barred, the question need not be dealt with. 8. Another point which was mentioned by the original adjudicating authority was that the appellants had already taken credit of CVD and therefore, refund is not admissible. This point has not been dealt with by the appellants in the written submission made before us. However, this issue becomes relevant only if it is held that refund is admissible and in that event, it has to be held that the actual amount of credit taken has to be deducted from the refund admissible, the balance only paid. 9. The next ground on which the claim has been rejected is unjust enrichment. The appellants had contended that since the quantity found short has not been imported at all, the question of unjust enrichment does not arise. It is already observed above that in this case, the contention of the appellants that there was no assessment in respect of the goods found short is not correct. Even otherwise as per the decision of the Apex Court in the Sahakari Khand Udyog Mandal Ltd. v. C.C.E. & Cus. - 2005 (181) E.L.T. 32....