Customs, Excise and Gold Tribunal - Tamil Nadu
The Commissioner Of Customs vs M.C. Dowell And Co. Ltd on 21 September, 2000
Equivalent citations: 2001(73)ECC478
ORDER S.S. Sekhon, Member (T)
1. The COD application, for delay of 11 days on the ground that there was no regular Commissioner posted, is allowed in the facts of this case, since we find that the present appeal by the Revenue is against the order of the Commissioner (Appeals) who had held that the refund claim was rejected on the ground of classification of the product automatic bottle labelling machine imported by them, which was treated by the learned Commissioner (Appeals) to be covered by the decisions of Calcutta High Court and Tribunal and therefore, the claim of refund filed by the importers was maintainable and since the imported goods were held to be capital goods for use in the factory of the appellants, the doctrine of unjust enrichment was not applicable.
2. The Revenue has filed this appeal, only on the ground that the decision of Solar Pesticides of the Bombay High Court giving relief to the importers of capital goods has been challenged by the department in the Supreme Court, as also the Revenue has filed an appeal against the judgment of Madras High Court in the case of undo Swiss Gem Mfg. Co. Ltd. which relates to the issue of unjust enrichment in respect of captive consumption of capital goods and a favourable decision from the Supreme Court is expected.
3. We have heard Shri S. Kannan, learned DR for the Revenue, who submits that the decision of Bombay High Court rendered in the case of Solar Pesticides has since been upset by the Honble Apex Court as and as per this decision of the Supreme Court, the fury of unjust enrichment would be applicable to the case of captive consumption also. He submits that the delay of 11 days is normal delay, due to the post of Commissioner being vacant. He also submits that the matter may be remanded back to the jurisdictional officer to decide the question of refund as per law now stated by the Supreme Court and the appeal may be taken up for final decision.
4. We find that when the case was called, nobody appeared for the respondents. There are no cross objections filed. Vide letter dated 19.9.2000 on the letter-head of the respondent company, signed for one Shri A. Santosh Kumar, it was communicated to the Assistant Registrar that "as informed to you earlier vide our letter dated 5.9.00. the concerned official is still on medical leave and will be back during end Oct. '00. Hence. we would request your good self to kindly post the hearing during the first week of Nov. '00" This matter, from the file we find, had earlier been listed on 6.9.2000, when it was adjourned to 21.9.2000 at the request of the respondents. The present letter dated 19.9.2000 has been signed for Shri A. Santosh Kumar without disclosing the designation or authority of the person who has said to have signed this letter on behalf of the company, who is the importer (respondents) in the present case. The company has to be represented, as per law, through their authorised representative and if the concerned officer in that company was on medical leave, the company affairs cannot be held to have stopped for that reason. In any case, the present request is not an authorised request and we find that there is no effort on the part of the company to respond to the notice of hearing and since this matter is coming up for second time and an opportunity to the company has been given to respond to the application/appeal filed by the Revenue and also since the matter is fully covered by the order of the Supreme Court in the case of Solar Pesticides , we find no purpose would be served in adjourning the matter on an unauthorised request made on behalf of one Shri A. Santosh Kumar on the letterhead of the respondent company. We, therefore, proceed to decide the appeal after allowing the COD and stay applications. The order impugned is set aside and matter remanded to the Commissioner (Appeals) with a direction that the question of refund should be determined in the light of the decision rendered in the cases of Mafatlal Industries and Solar Pesticides as .
5. The appeal is allowed by way of remand