Custom, Excise & Service Tax Tribunal
Anand Silk Mills vs Commissioner Of Customs (Imports), ... on 16 February, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. C/410/08 (Arising out of Order-in-Appeal No. 48 (CRC)/2008/JNCH dated 31.01.2008 passed by Commissioner of Customs (Appeals), Nhava Sheva.) For approval and signature: Honble Mr P.G. Chacko, Member (Judicial) Honble Mr. M. Veeraiyan, 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Anand Silk Mills Appellant (Represented by: Shri R. Dinesh Agarwal, Advocate) Vs Commissioner of Customs (Imports), Nhava Sheva Respondent (Represented by: Shri S.M. Vaidya, J.D.R) CORAM:
Honble Mr P.G. Chacko, Member (Judicial) Honble Mr. M. Veeraiyan, Member (Technical) Date of Hearing : 16.02.2010 Date of Decision: 16.02.2010 ORDER NO..
Per: Mr P.G. Chacko
1. After examining the records and hearing both sides, we note that the short question involved in this case is whether the refund claim filed by the appellant is barred by unjust enrichment. By virtue of the Tribunals Order No. A/289/06 dated 2.2.06, which was passed in appeal No. C/34/00 filed by the appellant, they became entitled to claim refund of the amounts of fine and penalty earlier deposited by them with the Customs authorities. However, though the refund claim filed by them was sanctioned by the original authority, the amounts were ordered to be credited to the Consumer Welfare Fund. The Order-in-Original was sustained by the Commissioner (Appeals). In the result, the refund claim stands rejected on the ground of unjust enrichment.
2. In the present appeal, it is submitted that the doctrine of unjust enrichment is not applicable to a claim for refund of fine and penalty. In support of this contention, the learned Counsel has relied on the Honble Bombay High Courts judgment in United Spirit Ltd vs Commissioner of Customs (Import), Mumbai 2009 (167) ECR 80 = 2009 (240) ELT 513 (Bom) = 2009 (94) RLT 286 (Bom), wherein it was held that the principle of unjust enrichment would not be applicable to a claim for refund of redemption fine and that the same was applicable only to claim for refund of duty. This decision of the Honble High Court was followed in Rashtriya Metal Industries Ltd vs Commissioner of Customs, Nhava Sheva 2009-TIOL-1953-CESTAT-MUM.
3. Following the ruling of the Honble High Court, we hold that the claim for refund of fine and penalty, filed by the appellant, are liable to be allowed in cash. Accordingly, after setting aside the impugned order, we direct the original authority to effect cash refund of the amounts to the appellant.
4. The appeal stands allowed.
(M. Veeraiyan) Member (Technical) (P.G. Chacko) Member (Judicial) rk 2