IMPORTANT POINT
The main legal point established in the judgment is the application of Section 130 of the Customs Act, 1962, and the analysis of Section 28D in the context of a claim for refund of duty. The court's decision emphasized the settled admissibility of the refund, the lack of evidence to justify unjust enrichment, and the continued use of the vessel, which negated the passing of the burden of duty.

JUDGMENT :

T.S. Sivagnanam, J.

1. There is a delay in filing the appeal, delay having been properly explained, delay is condoned and the application is allowed.

2. This appeal filed by the revenue under Section 130 of the Customs Act, 1962 (the Act) is directed against the order dated 03.05.2023 passed by the Customs Excise and Service Tax, Appellate Tribunal, Eastern Zonal Bench, Kolkata (tribunal) in Customs Appeal No. 75868 of 2015. The revenue has raised the following substantial questions of law for consideration:-

(i) Whether the Learned Tribunal has properly appreciated the provision of Section 28D of the Customs Act, 1962?

(ii) Whether the Learned Tribunal before upholding the order of the Commissioner (Appeals) is required to verify the contents of provision of Section 28D of the Customs Act, 1962?

3. We have heard Mr. K.K. Maiti, learned Senior Standing Counsel for the department assisted by Mr. Tapan Bhanja learned advocate and Dr. Samir Chakraborty, learned Senior Advocate assisted by Mr. Abhijit Biswas and Mr. B. Sengupta learned advocates for the respondent.

4. The respondent assessee is a Government of India undertaking which entered into a contract with Kolkata Port Trust for dredging work at Balari Bar Reach at river Hooghly and for transporting the material dredged and disposing the same in the designated disposal area. For the purpose of the said contract, the assessee purchased one cutter suction dredger with accessories and spares from a Dutch firm. The three bills of entries were filed on 28.01.1991, 29.01.1991 and 01.02.1991 which was assessed provisionally on payment of duty and against execution of bond as the customs authorities entertained doubt as to whether spares along with the dredger and two subsequent consignments and others were eligible for assessment at the rate applicable to dredger under Accessories (Conditions) Rules, 1963 read with Notification No. 133/87-Cus. During the course of the adjudication, the assessee contended that spares which have come along with the dredger covered under the Bills of entry dated 28.01.1991 for which no separate invoice has been raised by the supplier should be assessed at the rate applicable to the dredger and the extra duty paid by them during provisional assessment should be refunded to them as the two conditions mentioned in the Accessories Rules and Notification No. 133 of 1987 has been fulfilled by them. The adjudicating authority rejected such contention raised by the assessee and confirmed that the demand of duty in respect of spares and accessories and denied benefit of Notification No. 133/87-Cus. The appeal filed by the assessee against the said order of adjudication was dismissed by the Commissioner Appeals. Aggrieved by the same, the assessee filed the appeal before the tribunal. The tribunal by order dated 13.09.2001 accepted the case of the assessee and in doing so relied upon the decision of the Coordinate Bench of the tribunal in the case of Boskalis Dredging India Private Limited Versus Commissioner of Customs, Bhubaneshwar dated 06.11.1997 thereby holding that the accessories and spares, pipelines etc. forms an indispensable part of the main vessel. It is thereafter the assessee filed a claim for refund of Rs. 11,32,81,147/-. When the refund application was taken up for consideration it was alleged that the application was not filed within the period of six months from the date of finalization of provisional assessment made by the Assistant Collector dated 24.08.1992 and therefore the same is time barred. Further it was held that the assessee failed to establish by documentary evidence that they did not pass on incidence of duty to any other person in terms of Section 27 read with Section 28C and 28D of the Act. The assessee contended that the order of the tribunal is dated 13.09.2001 and the refund claimed was filed on 03.11.2001 and the same is within the time limit.

5. Further it was contended that the bar of unjust enrichment is not applicabl