2024 (12) TMI 65

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....ional and the above order finalising the provisional assessments, the PD bonds were to be finalised and cancelled; and the cancellation of PD bonds was also not placed on record. Further, the refund was also rejected on the ground that no evidences was produced to prove unjust enrichment and finally held that the Order-in-Original No. 693/2014 dated 31.12.2014, which was set aside by the Commissioner (Appeals) vide Order-in-Appeal No.256-257/2016 dated 31.03.2016, based on which the refund was being claimed. On appeal, the Commissioner (Appeals) upheld the rejection of the refund claims on the above grounds. Hence, this appeal. 3. The learned counsel on behalf of the appellant submitted that the appellant had filed 15 Bills of Entry from April 2002 to March 2003 and these Bills of Entry were assessed provisionally for want of Special Valuation Branch (SVB) Order and the valuation aspect was finally decided by the Special Valuation Branch vide Order-in-Original No.SVB/CUS/JPK/02/2009 dated 23.04.2009 and this order was accepted by both the appellant and the department. Based on the above order, the appellant had requested for finalisation of the provisional assessments and the orig....

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.... the finalization of the provisional assessment vide Order-in-Original No. 693/2014 dated 31.12.2014, which has been upheld by the Tribunal vide Final Order No. 20005-20010/2022 dated 07.01.2022. 4. The Authorised Representative did not object to the fact that the Order-in-Appeal No.256-257/2016 dated 31.03.2016 was set aside by this Tribunal vide Final Order No. 20005-20010/2022 dated 07.01.2022 and also the fact that unjust enrichment is not applicable to the provisional assessments prior to 2006. 5. Heard both sides and perused the records. 5.1 The Original Authority and the Commissioner (Appeals) have rejected the refund claim of Rs.26,57,893/- in respect of 15 Bills of Entry on the following grounds: a) Order-in-Original No. 693/2014 dated 31.12.2014 being set aside by the Commissioner (Appeals) vide Order-in-Appeal No. 256-257/2016 dated 31.03.2016. b) Non-submission of Bills of Entry and TR-6 challans. c) Documents evidencing cancellation of PD bonds. d) Unjust enrichment. 5.2 An appeal was filed by the appellant against Order-in-Appeal No. 256-257/2016 dated 31.03.2016 vide Customs Appeal No. 21104/2016 which was set aside by this Tribunal vide Final Order No. 2....

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....he same cannot be applied to cases of provisional assessment which took place prior to the said date. Any such application would in our view amount to retrospective operation of the law." 5.2 On going through the above, we do not entertain any doubt whatsoever on the non-applicability of interest for the provisional assessments undertaken before the amendment in Section 18 in 2006. Therefore, to this extent, the impugned orders do not survive and are liable to be set aside. Moreover, we find that the approach of the learned Commissioner (Appeals) vide the above cited order is in violation of the principle of judicial discipline. As no stay was granted as on that date against the order of the Tribunal, the learned Commissioner (Appeals) was bound by the decision of the 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 h....

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....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 find that the learned counsel for the appellants has categorically submitted that there was no case where they have imported at a price higher than the price at which the independent /unrelated entities have imported the spare parts. Therefore, the observations in para 17 of the SVB order are superfluous and not applicable as far as the imports in 2002 or before are concerned. Therefore, we do not find any basis in the conclusions arrived at in Order-in-Original and Order-in Appeal. For the reasons cited above and the judgments of Hon'ble High Courts of Madras and Gujarat, no interest can be charged on finalisation of provisional assessments initiated before 2006 for the reason that there was no charging Section during the relevant period notwithstanding the fact that such assessments are finalised after the amendment. 5.5 In view of the above, we find that the impugned orders in respect of appeal Nos. C/28399/2013; C/211042016; C/21105/2016, C/20295/2018; and C/21031/2018 do not survive on merits and thus, ....