AGROTECH FOODS LTD. Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THE appellants have challenged the correctness of the OIA No. 65/2002 -Cus., dated 16 -10 -2002. The appellants had prayed for refund of the amounts in terms of their claim. The claim was rejected solely on the ground that the Government of India had reduced the Tariff value from US$ 372 per MT to US$ 307 per MT and, therefore, the refund cannot be considered while finalising the provisional assessment. This view of the authorities below is challenged on the ground that irrespective of the Tariff change, the claim has to be considered while finalising the assessments and the provisions of unjust enrichment would not arise in the case of provisional assessment.

(2.) WE have heard both sides and find merit in the submission of the appellants. The issue is no longer res integra and the Madras High Court, in the case of CCE, Trichirapalli v. Hajee A.M. Abdul Rahiman - 2001 (133) E.L.T. 23 has clearly held that the bar of unjust enrichment is not applicable to refund arising on finalisation of provisional assessment. This view has been reiterated by the Tribunal in the following cases.

(3.) FURTHERMORE , the plea that failure to indicate the amount of duty in the invoice in terms of Section 28C of Customs Act, by itself is not a ground for rejecting the refund to the importer on the ground of unjust enrichment is also a well taken ground and supported by the following two judgments.