Custom, Excise & Service Tax Tribunal
M/S Hero Honda Motors Ltd vs Cce, New Delhi (Import & General) on 30 October, 2012
CUSTOMS EXCISE & SERVICE TAX APPLELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI COURT NO. 2 Date of Hearing : 30/10/2012 Custom Appeal No. 411 of 2008 (Arising out of Order-in-Appeal No. CCA/CUS/64/08 dated 31-1-2008 passed by the Commissioner of Customs (Appeals), New Delhi) M/s Hero Honda Motors Ltd. Applicant Vs CCE, New Delhi (Import & General) Respondent
Appearance :
Present for the Appellant : Shri Mukul Chandra, Advocate & Shri Vikas Mehta, Advocate Present for the Respondent : Shri Govind Dixit, D.R. Coram: Honble Shri D.N. Panda, Judicial Member Honble Shri Mathew John, Technical Member Order No.dated Per D.N. Panda :
The precise question before Tribunal in this appeal is whether the refund arose as per order of Tribunal passed on 3-2-2000 in Appeal No. C/232/1999-NB {F.O No. A/75/2000-NB(DB) dated 3-2-2000} shall be granted in accordance with law meeting the tests of unjust enrichment. 2. While carrying out appellate direction, the authorities below required that the refund that arose has to undergo the test of unjust enrichment which is mandate of Section 27(1) of the Customs Act, 1962 and unjust enrichment being a bar against refund, the appellant has to prove that the refund claimed shall not unjustly enrich it at the cost of public. It was a sequential failure of appellant before both the authorities below to prove that it was not unjustly enriched. Accordingly, Authority below denied the refund to the appellant.
2. It is the contention of the appellant today that Section 27(3) of the Customs Act does not require meeting of test of unjust enrichment. It was further submitted that all the documents have been filed in the appeal.
3. Revenue supports the appellate order of ld. Commissioner (Appeals).
4. Heard both sides and perused the record.
5. Section 27 of the Custom Act, 1962 is not required to be read in piecemeal or hither and thither to understand the legislative intent of that section. Sub section (1) of the said section has bar against unjust enrichment for which no refund claims shall be allowed without meeting the test prescribed by Section 27(1) of Customs Act, 1962. Sub-section (3) of the said Act, while permitting the refund arising out of sub-section (2) nowhere states that sub section (1) of Section 27 is not applicable to refund arising under that section. Had the intention been to oust the test of unjust enrichment, there would have been overriding mandate in sub section (2) itself. Therefore sub section (1) and sub section (3) operate on their own field and all refunds undergo test by sub section (1) of Section 27. This we can say following the apex Court judgement in the case of Sahakari Khand Udyog Vs. CCE 2005 (181) ELT 328 (SC),
6. Both the authorities below had no evidence before them as to meeting of the test of unjust enrichment by the appellant. We are not able to find which are the document that gives relief to the appellant and that was shown to the appellate authority but denied. Nothing was specifically brought to our notice.
7. Tribunal being final court of fact we made every effort to examine whether the appellant was denied justice. Once we do not find evidence overruling unjust enrichment, it is difficult to impeach the first appellate order. This calls for upholding the first appellate order for which appeal is dismissed.
(Dictated & pronounced in open Court) (D.N. Panda) Judicial Member (Mathew John) Technical Member RM*