COMMISSIONER OF CUSTOMS Vs. HINDALCO INDUSTRIES LTD.

JUDGEMENT

(1.) THIS is a Revenue appeal against the order of the lower appellate authority who has held that the bar of unjust enrichment is not applicable to cases of provisional assessment under the Customs Act, 1962.

(2.) HEARD both sides. Shri Vimlesh Kumar, learned S.D.R. appearing for the department refers to the three judges Bench decision of the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. v. Commissioner of C. Ex. and CMS. to argue that even in the absence of a specific provision in the law, a person cannot claim or retain undue benefit. Paragraph 48 of the said decision reads as under:

(3.) SHRI Kansara, learned Advocate appearing for the respondents states that in the instant case the assessments were provisional and that under Section 18 of the Customs Act, 1962 refund arising after finalization of the assessment is admissible. He cites the decision of the three Judges Bench of the Hon'ble Supreme Court in the case of Commissioner of C. Ex., Mumbai -II v. Allied Photographics India Ltd. to support his plea that in the absence of specific provision in the customs law making refunds arising out of finalization of provisional assessment subject to bar of unjust enrichment, such refund cannot be denied under the law. He further states that significantly refunds arising out of finalization provisional assessment under the Excise Law has been subjected to bar of unjust enrichment by a specific amendment whereas no such amendment has been made under the Customs Law.