Custom, Excise & Service Tax Tribunal
Idmc Ltd vs Mumbai Ii on 29 June, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/426/2012
[Arising out of Order-in-Appeal No: 99(CRC-I)/2012(JNCH)-IMP-88 dated 17/02/2012 passed by the Commissioner of Customs (Appeals), Mumbai II.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
IDMC Ltd.
Appellant
Vs
Commissioner of Customs
Mumbai II
Respondent
Appearance:
Shri Mayank Jain, Advocate for the appellant Shri D.D. Joshi, Superintendant (A.R.) for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Date of hearing: 29/06/2012 Date of decision: 29/06/2012 ORDER NO: ____________________________ Per: P.R. Chandrasekharan:
The appeal is directed against the Order-in-Appeal No: 99(CRC-I)/2012(JNCH)-IMP-88 dated 17/02/2012 passed by the Commissioner of Customs (Appeals), Mumbai II.
2. The facts relevant for the case are as follows:
2.1. The appellant, M/s. IDMC Ltd., filed a Bill of Entry No. 123 dated 11/02/2004 for import of plate heat exchangers under project import. As per the procedure prescribed, the bill of entry was to be assessed provisionally on payment of 2% security deposit on project imports and the appellant deposited 2% security deposit amounting to Rs. 1,73,754/- on 12/02/2004. The bill of entry was assessed finally on completion of the project by giving the benefit under Project imports. The appellant filed a refund claim for refund of 2% security deposit which they had paid. The same was sanctioned but ordered to be credited to the Consumer Welfare Fund on the ground that the appellant failed to prove unjust enrichment under Section 27(2) of the Customs Act, 1962. The appellant preferred an appeal before the Commissioner (Appeals) who vide the impugned order upheld the order of the lower adjudicating authority. Hence the appellant is before me.
3. The learned counsel for the appellant submits that Section 27(2) relating to bar of unjust enrichment applies only in respect of duty and interest if any paid on such duty. It does not applies to any deposits made by the appellant at the time of assessment. He further submits that the cash security equal to 2% of CIF value of the goods is made as per Circular No. 89/95-Cus dated 09/08/1995 issued by the CBEC. The said circular makes it absolutely clear that in respect of project imports, the importers are required to make a cash security equivalent to 2% of CIF value of the goods sought to be imported subject to a maximum of Rs. 50 lakhs pending final assessment under the project imports scheme. What has been deposited is only a cash security and not duty as evident from the circular issued by the CBEC and hence the issue of unjust enrichment is not applicable to the facts of the present case.
4. The learned AR appearing for the Revenue, on the other hand, relies on the judgment of this Tribunal in the case of Pride Foramer vs. Commissioner of Customs (Import), Mumbai 2006 (200) ELT 259 (Tri.-Mumbai) wherein it was argued that deposits made during the adjudication proceedings should be treated as deposit of duty and would be subject to the doctrine of unjust enrichment.
5. I have carefully considered the rival submissions. In the case relied upon by Revenue the deposit was made pursuant to an order dated 31/10/2001 from the honble Bombay High Court. Ultimately, in that case, inasmuch as the appellant has proved that he has not passed on the incidence of duty, refund was granted. In the said judgment there was no conclusion to say that pre-deposit of amounts would be construed as duty. In fact the Tribunal did not go into the question at all. In the case before us, the payment of cash security was made in terms of the Boards circular cited supra and the circular makes it abundantly clear that it is only a cash security and not any other payment. If that be so, provisions of Section 27(2) which applies to duty and interest thereon, does not apply to cash securities made. Therefore, the question of proving unjust enrichment would not arise in the case of refund of cash securities.
6. Accordingly, I set aside the impugned orders and allow the appeal with consequential relief.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) */as 4