COMMISSIONER OF CUSTOMS, AHMEDABAD Vs. HINDALCO INDS. LTD.

JUDGEMENT

(1.) ALL these four appeals are directed against the order -in -appeal Nos. 164 to 166/2006 -AHD/Cus/Commr(A) dated 29 -12 -2006 vide which two refund claims of the appellant was rejected and one refund was allowed by the Ld. Commissioner(Appeals). The appellant is in appeal against the rejection of the refund claims in two appeals and Revenue is in appeal against the order which allowed refund appeal of the appellant. Since all the four appeals are arising out of the same order -in -appeal, they are being disposed off by a common order.

(2.) THE relevant facts that arise for consideration are; The appellant imported copper concentrate from different importers. Internationally, copper concentrate is traded on the basis of prices ruling at London Metal Exchange (LME). The price of the concentrate is arrived after accounting for the copper, gold and silver contents in the concentrate. The provisional invoice is raised on the basis of load port assays but the final price is determined after the assays conducted at the port of discharge based on the price prevalent in the LME on a pre -determined date based on the convenant of the contract between the buyer and the seller. At the time of import, the seller issues only a provisional invoice and the goods are provisionally assessed based on such invoice. The system of raising a final invoice by the seller and final assessments of the Bills of Entry based on such final invoices are not in dispute. In all the Bills of Entry, the Adjudicating Authority has accepted the price mentioned in the final invoice and has finally assessed the bills of entry on the basis of such invoices.

(3.) LD . Advocate appearing on behalf of the appellant submits that as regards rejection of the refund claim of the appellant in respect of the bill of entries assessed prior to the amendment of Section 18 on 14 -7 -2006, the question of bar of unjust enrichment should not apply. It is his submission that as regard the rejection of the bill of entry, which was assessed subsequent to the amendment Section 18 of the Customs Act, 1962, it was contented that the Revenue took time to finalise the bill of entry despite the documents having been produced before the authorities and hence the refund claim should be allowed. He submits that the question of unjust enrichment being not applicable to the provisional assessment, has been settled by the Honble Supreme Court in the case of Commissioner of Central Excise, Mumbai -II v. M/s. Allied Photographics India Ltd. as reported at 2004 (166) E.L.T. 3. He further submits that the Supreme Court in the case of Commissioner of Central Excise, Chennai v. M/s. TVS Suzuki as admitted at 2003 (156) E.L.T. 161 has allowed refund on the ground that the finalization of the provisional assessments prior to the date of amendment would be governed by the law as it stood. It is his submission that as regards the appeal against the refund claim of Rs. 1,11,187/ - which is allowed by the Commissioner (Appeals), their appeal is directed against no findings on the question of directing the Adjudicating Authority to sanction the refund claim and nothing more than that.