HEWLETT PACKARD INDIA LTD. Vs. CC

JUDGEMENT

(1.) THIS is an appeal against the order dated 20th September, 2000 passed by the Commissioner of Customs (Appeals), Mumbai. The issue relates to refund claim filed by the appellants, Shri R. Parthasarthy, learned Advocate appearing on behalf of the appellants submitted that the appellants have imputed various units of Automatic Data Processing Machines from its parent company in USA. Since the transactions were between related parties, provisional loading of the transaction value was done by the Special Valuation Branch. Vide order dated 5.8.1996, the Assistant Commissioner of Customs (SVB), Madras passed an order confirming the provisional loading. On appeal by the appellants, the Commissioner of Customs (Appeals), Madras passed order dated 22.9.1997 setting aside the order of the Assistant Commissioner and ordering for acceptance of the transaction value. This order in appeal of the Commissioner (Appeals) was confirmed by this Tribunal vide its order reported in : 1999 (108) ELT 221). This judgment of the Tribunal has been accepted by the Revenue. After the Commissioner (Appeals) Madras decided the issue in favour of the appellants, the appellants vide their letter dated 30.9.1997 requested the Bombay Customs to accept the assessments without any loading. Since the Mumbai Customs did not accept the request of the appellants, the appellants sought provisional assessment of the goods imported and accordingly executed PD bond for Rs. 10 crores. Accordingly, the appellants cleared the consignment on provisional loading basis. The appellants filed refund claim which was rejected by the Assistant Commissioner of Customs, Mumbai on the ground that part of the refund is time barred and the entire claim hit by unjust enrichment. On appeal, the Commissioner (Appeals) vide the impugned order, held that the refund claim is not barred by time. However, he rejected the claim as hit by unjust enrichment. The learned Counsel submitted that the refund claim of the appellant is a result of finalisation of the provisional assessment of the goods imported by the appellants on account of SVB loading. It is settled legal position that the refund arising on account of finalisation of the provisional assessment, the provisions of Section 27 would not apply and the principles of unjust enrichment also would not apply [Mafatlal Industries Ltd. ( : 1997 (89) ELT 247 :, 1997 (68) ECR 209 (SC)]. He relied on the following decisions of this Tribunal in this regard:

(2.) Shri Jagdish Singh, learned DR has appeared on behalf of the Revenue and he submitted that the appellants have not proved the entries with regard to the bills of entry. The assessments are not provisional. He therefore, reiterated the findings of the learned Commissioner (Appeals). We have heard the rival submissions and perused the records. From the case laws, we find that the Apex Court judgment in Mafatlal case (supra) is clearly applicable in the present case. In para 95, the Hon'ble Apex Court has clearly held that recovery or refund sanctioned upon adjustment under Rule 9(b)(5) will not be covered by the provisions of Section 11 -A or Section 11 -B of the Central Excise Act. We, therefore, set aside the impugned order and allow the appeal filed by the appellant.