Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Nhavasheva vs M/S. Krbl Ltd on 13 February, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/847/07 Mum
(Arising out of Order-in-Appeal No. 148 (Gr.II A)/ 2007 (JNCH) dated 19.6.2007 passed by the Commissioner of Customs (Appeals), Mumbai II).
For approval and signature:
Honble Shri A.K. Srivastava, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Commissioner of Customs, Nhavasheva
:
Appellant
Versus
M/s. KRBL Ltd.
Respondent
Appearance Shri U.H. Jadhav, JDR for Appellant Shri D.H. Nadkarni, Advocate for Respondents CORAM:
Shri. A.K. Srivastava, Member (Technical) Date of Hearing : 13.2.08 Date of Decision : 13.2.08 ORDER NO.
Per : Shri. A.K. Srivastava, Member (Technical) This appeal has been filed by the Revenue.
2. Heard both sides and perused the records.
3. The brief facts of the case are that M/s. KRBL Ltd., 5190, Lahore Gate, Delhi 110 006 (the respondents herein) have submitted a refund claim for the refund of duty, which has been levied twice on the same goods.
4. The respondents filed the B/E No. 720870 dated 15.10.2004 for the Import of 210 MTS of chickpeas from Turkey. The B/E was filed for 10 x 20 FCL containers and duty was paid on 18.10.2004. The respondents submitted that two containers were short shipped out of ten containers as mentioned in the B/E. The out of charge for eight containers on B/E no. 720870 dt. 15.10.2004 was taken on 29.10.2004. On 02.11.2004, the respondent filed another B/E No. 733067 for clearance of the remaining two containers, which arrived subsequently and paid duty on 02.11.2004 and out of charge was taken on 05.11.2004.
5. Subsequently, the respondents got the B/E No. 720870 dt. 15.10.2004 amended and assessed finally on 17.3.2005, wherein the out of charge for eightcontainers (168 MTS) was given, which was earlier cleared on 29.10.2004. The duty amount in amended B.E. (for eight containers) works out to Rs.2,80,376/-. Whereas the duty amount on earlier B/E with ten containers (210 MTs) was Rs. 3,50,470/-, which was paid on 18.10.2004. The difference of the two comes to Rs.70,094/-, which is the refund amount, claimed by the respondents vide their application dt. 27.01.2005.
6. Since this was the case of double payment of duty, the Asst. Commissioner sanctioned the refund of Rs.70,094/- following the ratio of the Bombay High Court judgement in the case of Board of Trustees of the Port of Murmugao vs. Union of India 1993 (68) ELT 39 (Bom). As regards, the doctrine of unjust enrichment, he observed as under:-
As regards doctrine of unjust enrichment, since at the first instance duty was collected on goods, which did not arrive and hence duty is not leviable on the same. Since the refund sought is of excess duty paid in the first instance. When there were no goods there could be no buyers and there could not be any question of passing the incidence of duty to any buyer. In view of this the question of unjust enrichment would not arise. On appeal by the Revenue, the Commissioner (Appeals) upheld the order of the Asstt. Commissioner and rejected the appeal. Hence this appeal by the Revenue.
7. I have examined the position. The short landing of the two containers is an admitted fact on record. Therefore, it cannot be denied that the amount pertains to the duty paid for the goods that did not exist at the relevant time. Since there cannot be a buyer for the non-existent goods, it is normal logic that the duty could also not have been passed on to a non-existent buyer. The Tribunal in the case of M/s. Godrej and Boyce Mfg. Co. Ltd. Vs. Collector of Customs, Mumbai reported in 2001 (134) ELT 429 (Tri. Mumbai) in an identical situation, has observed as under:-
The claim arose because the goods in respect of which the duty was paid never arrived in India. In that situation, there could be no question of incidence of duty being passed on. The importer could not have sold the goods or used them for any other purpose, there being nothing to sell or use.
8. The case laws relied upon by the Revenue viz. M/s. Mafatlal Industries Ltd. vs. Union of India (1997 (89) ELT 249 (SC) and Sarkari Khand Udyog Mandal vs. CCE 2005 (181) ELT 328 (SC) lay general guidelines in respect of the doctrine of unjust enrichment which infact have been followed in this case. The case law in the case of Godrej and Boyce Mfg. Co. Ltd. cited supra is squarely applicable to the facts of the present case and is required to be followed. Further, I find that the respondents submitted a file before the Commissioner (Appeals) containing the submissions / Chartered Accountants Report / costing etc to show that the double duty incidence has not been passed on to the buyers. The Revenue in its appeal has not contradicted this. Nor they have produced any contrary evidence to support their claim that the incidence of duty has indeed been passed on by the respondents to anybody else. Therefore, the appeal filed by the Revenue lacks substance.
9. In the light of the foregoing discussions, I hold that the appeal filed by the Revenue is not maintainable and is accordingly dismissed.
(Pronounced in Court) (A.K. Srivastava) Member (Technical) nsk 4