BHAVITA CHEMICALS PVT. LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) HEARD both sides. The Assistant Commissioner (Import) had sanctioned an amount of Rs. 58,172/ - as refund of excess anti dumping duty paid by the asssesse holding that there has not been any unjust enrichment as the imported goods in question were consumed captively in the manufacturing of the final product and the prices of final product before and after such imports remained unchanged. In pursuance of the said order the amount was refunded to the appellants. Thereafter there was Review Order No. RC/AC -01 -79/2004 dated 20.1.2005 passed by the Commissioner of Customs directing the Assistant Commissioner of Customs to file an appeal with the Commissioner of Customs (Appeals), Mumbai. Accordingly on filing of such appeal, the Commissioner of Customs (Appeals), Mumbai has set aside the order in original and allowed the appeal filed by the Revenue. Hence this appeal by the importers/appellants. The Commissioner (Appeals) while relying upon the decision in the case of Sahakari Khand Udyog Mandal Limited v. CCE and C in which the Apex Court has held that "the 'doctrine of unjust enrichment' can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition of this doctrine. That, however does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden of duty to its customers.

(2.)

(3.) THE Learned Counsel for the appellants submits that excess anti dumping duty has beery paid while making provisional assessment of bill of entry for the imported goods i.e. Phosphoric Acid and on finalization of the assessment of bill of entry no excess rate of duty is found liable in view of Notification No. 94/01 dt.12.9.2001, as such the case is covered by the Provision of the Section 18(2) (a) of the Customs Act, 1962 since the provisional assessment was done under Section 18 of the Act.