2008 (7) TMI 370

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....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 392491 439/97-98 10-11-97 17-12-98 11-5-99 21-6-99 1-8-2001 17-10-2001 6-11-2001 23-11-2001 20-3-2002 41811 382/97-98 13-10-97 18-12-98 24-5-99 21-6-99 19-7-2001 17....

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....nt 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 before the concerned Assistant Commissioner/Deputy Commissioner before taking delivery of the goods imported. It was also held that if the appellants were to raise the issue of less discharged quantity at the relevant time, the Department could have taken action under Section 116 of the Customs Act, 1962 against master of the vessel and against the custodian. (c) The appellants had already taken the credit of CVD. (d) The appellants did not submit the necessary doc....

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.... 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 be seen that the none of the above cases are relevant to the contention that assessment is a nullity and Section 27 is not applicable in view of the fact that they are not comparable on facts under consideration here. Further, as already mentioned earlier, the fact that there was short-receipt of the quantity as compared to the bill of lading quantity was known much before finalization of provisional assessment and in respect of 5 bills of entry, the excess duty was found to have been p....

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.... 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. 328 (S.C.), a person cannot claim or retain undue benefit and before claiming a relief of refund, the appellant has to show that he has paid the amount for which the relief is sought and he has not passed on the burden on consumer and if such relief is not granted he would suffer loss. This would be the position even if statute does not have statutory provision to deny refund on the ground of unjust enrichment. In view of the above judgment irrespective of the ground on which the refund is claim....