TaxTMI 
TaxTMI 
2023 (10) TMI 1460
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....n of PD bond, etc., and also on issue of unjust enrichment. The appellant is in appeal against this order. 2. The learned counsel on behalf of the appellant today submitted that the Order-in-Appeal No.260/2016 dated 31.3.2016 referred by the Commissioner (A) in his impugned order has been set aside by this Tribunal vide Final Order No.20870/2023 dated 18.5.2023. Hence, on merits they are eligible for refund. It is also submitted by them that they had informed the department vide letter dated 14.10.2015 that all the original Bills of Entry/TR-6 challans were with the assessment groups. 2.1 They also placed reliance on the decision rendered in the case of M/s. Mangalore Refinery and Petrochemicals Ltd. vs. Commissioner of Customs, Mangalore: 2015-TIOL-675- HC-KAR-CUS to state that refund application need not be filed by the assessee and it is the duty and obligation of the department to refund the amount ordered. 2.2 With regard to unjust enrichment, it is submitted that test of unjust enrichment need not be fulfilled for finalisation of Bills of Entry for the period prior to 2006 as Clause (5) to Section 18 of the Customs Act, 1962 which was inserted vide an amendment with ....
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....rest, if any, paid or such duty to any other person; (d) the export duty as specified in Section 26; (e) drawback of duty payable under Section 74 and 75. 6.1 In the case of M/s. Mangalore Petrochemicals Pvt. Ltd.: 2015-TIOL-675-HC-CUS the Hon'ble High Court of Karnataka has held that: "8. The substantial question of law that arises for our consideration in these appeals is : Whether the doctrine of unjust enrichment inserted by way of subsection (5) of Section 18 of the Act with effect from 13-7-2006 was applicable to refund under Section 18 prior to the amendment in view of Section 27(2) of the Act? 9. Section 18 of the Act reads as under : 18. Provisional assessment of duty. - (1) Notwithstanding anything contained in this Act but without prejudice to the provisions contained in section 4 - (a) where the proper officer is satisfied that an importer or exporter is unable to produce any document or furnish any information necessary for the assessment of duty on the imported goods or the export goods, as the case may be; or (b) where the proper officer deems it necessary to subject any imported good....
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....id to the importer or the exporter, as the case may be, if such amount is relatable to - (a) the duty and, interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be. if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75.] Section 18 of the Act deals with the provisional assessment of duty. Section starts with a non-obstante clause and the only exception being Section 46. It provides for provisional assessment and a proper officer directing the assessee to pay the duty leviable on such goods, be paid on provisional assessment, subject to the condition that the assessee shall pay the duty as may be finally assessed. Sub-section (2) provides when the duty levia....
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....t. 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." (Emphasis supplied) 6.2 The Larger Bench in the case of Commissioner of Customs, Kandla vs. M/s. Hindustan Zinc Ltd.: 2009-TIOL-484- CESTAT-AHM-LB held that: "7.4 In the case of Section 18 and Section 27, the provisions relating to provisional assessment were always there in Section 27 and Section 18 was amended only in 2006. The Hon'ble Gujarat High Court in Hindalco case considered this issue in detail. The observations of the Hon'ble Gujarat High Court as regards Section 18 prior to the amendment and after the amendment in Para 16 and 18 of the judgment are very relevant and therefore are reproduced below: "16. On a plain reading it becomes apparent that the said section overrides other provisions of the Act except provisions of Section 46 of the Act and permit....
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....aim of the refund. Therefore, the High Court came to the conclusion that when provisional assessment is finalized, the assessee is entitled to refund and he does not have to make the claim. Therefore, the provisions of Section 27 is not attracted. ..... 8. In view of the above discussion, there is no doubt that prior to 13.7.2006, refund, which became due on final assessment is to be made without the claim being submitted by the assessee and therefore, did not attract the provision of unjust enrichment. The reference made by the divisional Bench is answered in favour of the respondent." 7. For the reasons discussed above, the matter is remanded to the original authority only to the limited extent of verification of the documents like BOE, TR-6 challans, finalisation of PD bond, etc., which appears to be have been submitted by the appellant to the assessment group and the appellant will also cooperate in providing all the documents wherever necessary. A reasonable opportunity of hearing may be granted to the appellant before the issue of refund is finalised. 8. Appeal is allowed by way of remand. (Operative portion of the order was pronounced in Open Court....