Page 157 - ELT_2nd_15th April 2020_Vol 372_Part

2020 ] OIL AND NATURAL GAS CORPORATION LTD. v. UNION OF INDIA 203

…….
25. I find that, Order-in-Assessment No. KDL/DC/NC/105/Gr/-V/2016,
dated 23-1-2017 issued by the Deputy Commissioner (Group V), Custom
House, Kandla is accepted by the competent authority on 14-2-2017. There-
fore, considering above I find that, the stand of the final assessment of the
15 bills of entry as mentioned hereinabove in Table-2 by extending the ben-
efit of exemption of Notification No. 197/76-Cus., dated 2-8-1976 and Noti-
fication No. 515/86-Cus, dated 30-12-1986 which is accepted by the de-
partment becomes final. Therefore, I am inclined to hold that, the claimant
is eligible for refund of excess duty amount of Rs. 5,41,82,641/- subject to
examination of doctrine of unjust enrichment which I will discuss in detail
in upcoming paras.
………..
27. In view of above discussion I find that the claimant is eligible for re-
fund on count of time limit and merit subject to examination of doctrine of
unjust enrichment. Now I will take up the count of liability to pay interest
to the claimant.
……….
30. In terms of the above provision of the Section 18(4) of the Customs
Act, 1962 interest has to be paid to the claimant if the duty amount is not re-
funded to the claimant within three months from the date of final assess-
ment of duty subject to sub-section (5) of Section 18 under which the appli-
cation shall be accompanied by such documentary or other evidence to es-
tablish that the amount of duty or interest, in relation to which such refund
is claimed was collected from, or paid by, him and the incidence of such
duty or interest, has not been passed on by him to any other person. It is an
undisputed fact that, bills of entry was finally assessed vide Order-in-
Assessment No. KDL/DC/NC/105/Gr.-V/2016 on 23-1-2017 and after the
final I assessment the claimant filed application dated 16-8-2017 on 21-8-
2017 which was deficient with respect to the requisite documents.
………..
31. It is also an undisputed fact that, till the date, the claimant has not
submitted relevant Ledgers A/c [Balance Sheet, showing the Custom duty
paid against relevant Bill of Entry is recoverable from Customs authority
and no recovery thereof has been made from the buyers or any other per-
sons and relevant MODVAT/CENVAT ledgers/ Register of the relevant
period for verification of “No Modvat Credit has been availed by the unit
against the relevant Bill of Entry” which were necessary for the mandatory
examination of the unjust enrichment before releasing the refund. Therefore
the refund claim was filed by the claimant was never complete.
……….
33. In view of above discussion, I find that, the claimant is not eligible for
the interest amounting to Rs. 17,03,05,689.63 as claimed by them. Now I
proceed to examine the refund claim on count of doctrine of Unjust En-
richment.
………..
38. M/s. ONGC Ltd. vide letter dated 1-6-2018 stated that, matter is very
old and pertains to the year 1985-86, it is very difficult to find out the avail-
EXCISE LAW TIMES  15th April 2020  173