Custom, Excise & Service Tax Tribunal
M/S Milton Laminates Ltd vs Commissioner Of Customs, Nhava Sheva on 28 June, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. C/1267/09 (Arising out of Order-in-Appeal No. 530(CRC-1)/2009(JNCH)IMP-159 dated 30.9.2009 passed by the Commissioner of Customs (Appeals), Nhava Sheva). For approval and signature: Honble Shri S.K. Gaule, 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? ====================================================== M/s Milton Laminates Ltd. Appellant Vs. Commissioner of Customs, Nhava Sheva Respondent Appearance: None for Appellant Shri B.P. Pereira JDR for Respondent CORAM: SHRI S.K. GAULE, MEMBER (TECHNICAL) Date of Hearing: 28.06.2011 Date of Decision: 28.06.2011 ORDER NO. WZB/MUM/2010 Per: S.K. Gaule
The appellant filed this appeal against the Order-in-Appeal No. 530(CRC-1)/2009(JNCH)IMP-159 dated 30.9.2009 whereby the Commissioner (Appeals) upheld the lower adjudicating authoritys order crediting the refund amount to the Consumer Welfare Fund (CWF).
2. Briefly stated facts of the case are that the appellant filed a Bill of Entry for clearance of Stock lot of Base Paper for Waxing Coating and Impregnation of US origin. Proceedings were initiated against the appellant on the ground that the goods were prime goods and not stock lot. Both the lower authorities in the first round decided against the appellant. The appellant challenged the same before CESTAT, New Delhi and their appeal was allowed with consequential relief. The appellant filed a refund claim accordingly. The lower adjudicating authority sanctioned Rs.1,55,076/-, however, ordered it to be credited to the Consumer Welfare Fund on the ground that doctrine of unjust enrichment is applicable in their case in terms of provisions of Section 27 of the Customs Act, 1962. It was challenged before the Commissioner (Appeals), who upheld the lower adjudicating authoritys order. Hence this appeal.
3. Heard learned JDR. None appeared for the appellant. However, vide their letter dated 1.12.2010, they requested to decide the case on the basis of the case records.
4. The learned JDR took me through the case records and brought to my notice that the appellant was not able to discharge the burden that the incidence of duty has not been passed on to the customers. He submits that as per Chartered Accountants certificate the amount of refund is not shown as receivable from Customs in the Balance Sheet and also charged to expenditure A/c in the Balance Sheet. Therefore, the finding of the lower adjudicating authority is in order and appeal is required to be rejected.
5. The main ground of the appellant in the appeal is that they have made assessment provisionally and paid the duty under protest through DEPB Scrip and not through cash.
6. I have carefully considered the submissions and perused the records. I find that the original adjudicating authority has sanctioned an amount of Rs.1,55,076/-, however, he has ordered the amount to be credited to the Consumer Welfare Fund in terms of provisions of Section 27(2) of the Customs Act, 1962. The Commissioner (Appeals) upheld the lower adjudicating authoritys order on the question of unjust enrichment. Before process of this case, the operative portion of the lower adjudicating authoritys order is reproduced herein as under: -
In view of the above, I hereby, sanction the amount of Rs.1,55,076/- of which BCD of Rs.60,076/- (paid through DEPB Scrip) and fine and penalty of Rs.95,000/- (paid vide TR-6 Challan) for refund under Section 27(i) of Customs Act, 1962. I also order that the amount sanctioned i.e. Rs.1,55,076/- be credited to the Consumer Welfare Fund, in terms of provisions of the Section 27(2) of the Customs Act, 1962. From the above, it appears that both the lower authorities have applied the doctrine of unjust enrichment in case of fine and penalty of Rs.95,000/-. It is a settled law that doctrine of unjust enrichment would not apply to fine and penalty. Both the lower authorities have passed the order mechanically.
7. In view of the above, the matter requires reconsideration. Therefore, the case is remanded to the lower adjudicating authority to decide the issue afresh. The appellants are at liberty to produce the documents in support of their contention. Since the issue reltates to year 2005, it is desirable that the lower adjudicating authority decide the case expeditiously preferable within a period of three months from the date of receipt of this order. Needless to say that a reasonable opportunity of hearing is to be granted to the appellants before passing a fresh order.
8. The appeal is allowed by way of remand.
(Dictated and pronounced in Court) (S.K. Gaule) Member (Technical) Vks/ 1