TIMKEN INDIA LTD. Vs. COMMISSIONER OF CUSTOMS, KOLKATA

JUDGEMENT

(1.) BEING aggrieved by the order dated 30th June, 2003 passed by the ld. Commissioner of Customs (Appeals), Customs House, Kolkata, in terms of Order -in -Appeal No. KOL/CUS/14/ CKP/2003 holding that refund of Rs. 1,07,09,835/ - claimed by the appellant was barred by principles of unjust enrichment, the appellant carried such dispute to this forum in second round of litigation. The first found of litigation before this forum was on the issue of manner of valuation of imported goods and Revenue being aggrieved by order dated 30 -6 -95 passed by ld. Commissioner of Customs (Appeals) came in appeal to Tribunal in Appeal Case No. C/V -153/95 -CAL. Tribunal disposing such appeal by order dated 8 -1 -96 remanded the matter for de novo adjudication and directed as follows :

(2.) 1 The ld. Sr. Advocate, Shri S.K. Bagaria, appearing for the appellant submitted that 11 Bills of Entry involving import of second -hand machinery consequent upon finalisation of provisional assessment by order dated 23 -2 -95 gave rise to the refund of Rs. 1,07,09,835/ - by order dated 10 -12 -1999 after series of litigation by both parties on the dispute of valuation of 26 second -hand machineries imported by the Appellant during Sept.91 to Feb.93 (Para 4 of Statement of Facts of Appeal Memo). Such refund does not call for test of unjust enrichment when that arose on final assessment under Section 18(2) of the Customs Act, 1962. According to him, conclusion of the ld. Commissioner (Appeals) in terms of order dated 30th June, 2003, holding that any subsequent order against the assessment would entail re -assessment was baseless and erroneous. When the provisional assessment reached to finality, the process of such finalisation whether short or lengthy cannot be termed as reassessment since Revenue has litigated the matter all along. Therefore, a provisional assessment concluded under Section 18(2) giving rise to refund should have been given to the appellant suo motu since that is not hit by bar of unjust enrichment.

(3.) LD . JDR Shri P.K. Das, appearing for Revenue submitted that once refund arises that has to meet scrutiny of unjust enrichment following the decision of the Honble Supreme Court in the case of M/s. Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.). Therefore, both the Authorities below were correct in law in their judgment which does not require intervention.