Custom, Excise & Service Tax Tribunal
M/S. Falcon Impex vs Commissioner Of Customs (Import) Nhava ... on 14 March, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. APPEAL NO. C/1046 & 1047/07 (Arising out of Order-in-Appeal No. 232(CRC)/2007(JNCH) dt. 13.08.2007 passed by the Commissioner of Customs, (Appeals) Nhava Sheva, Mumbai-II For approval and signature: Hon'ble Shri M. V. Ravindran, Member (Judicial) ============================================================
1. Whether Press Reporters may be allowed to see : 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 : of the Order? 4. Whether Order is to be circulated to the Departmental : authorities? ============================================================= M/s. Falcon Impex : Appellant M/s. Superfine Overseas VS Commissioner of Customs (Import) Nhava Sheva Respondent Appearance Shri S.B. Patil, Consultant for Appellant Dr. Y.D.Banga, Authorized Representative (SDR) CORAM: Shri M. V. Ravindran, Member (Judicial) Date of decision 14/3/08 ORDER NO.................................................... Per : Shri M. V. Ravindran, Member (Judicial)
These two appeals are directed against the Order-in-Appeal No. 232(CRC)/2007(JNCH) dt. 13.08.2007. Since the issue involved in these two appeal being same, they are being disposed off by a common order.
2. The relevant fact that arise for consideration are that appellants imported Blank Video Cassettes, and filed Bills of Entry for the clearance of the same. The lower authorities held that these goods are not freely importable and hence confirmed additional Customs Duty liability and imposed redemption fine and penalty on the appellants which was paid. Both the appellants aggrieved by such order contested to same and took the matter to the Tribunal. The Division Bench of the Tribunal in order No.A-951-952/WZB/2004/C-III dt. 20.8.2004 held in favour of the appellant. Consequent to such order of the Tribunal, appellant filed a refund claim of the amount of duty of the redemption fine and penalty imposed. The adjudicating authority directed the appellants to produce evidence of non-passing of the incidence of the amount, in respect which the refund was claimed. The appellants could not produce any evidence regarding the additional duty paid, and restricted their claim to redemption fine and penalties and submitted that the question of unjust enrichment does not apply to the amounts of redemption fine and penalties. The adjudicating authority did not accept the contention and rejected the refund claim in its entirety. The adjudicating authority also held that the refund claim filed by the appellants were time barred. The appellants filed an appeal to the Ld. Commissioner (Appeals), The Ld. Commissioner (Appeals) accepted the appellant's plea that the refund claim which are consequent to the relief given by the Tribunal will not be hit by the time barred but upheld the rejection of refund claim of redemption fine and penalties on the ground of unjust enrichment.
3. The Ld. Counsel appearing on behalf of the appellant submits that the question of unjust enrichment does not apply to the redemption fine and penalties which were paid by the appellant during the proceedings before the lower authorities. It is his submission that having succeeded in the Tribunal, the returning the amount of redemption fine and penalty should have been automatically done so and there was no need for filing of refund claim. The question of unjust enrichment does not apply to redemption fine and penalty. He submits that provisions of Section 28D of the Customs Act,1962 specifically apply only to the duty and not redemption fine and penalty.
4. The Ld. SDR on the other hand would submit that when there is a question of refund of duty or any other amount, appellant/assessee has to satisfy the doctrine of unjust enrichment. He submits that the appellant has not filed any evidence in support of their claim of having not passed on the incidence to the buyer, and refund claim has been rightly rejected, even if it is for redemption fine and penalty.
5. Considered the submissions made by both sides and perused the records. It is un disputed that the appellants herein had succeeded in their appeal before the Tribunal. It is also undisputed that the said order has not been appealed. Tribunal vide its order dt.20.8.2004 has set aside the impugned order holding that the appellant is not liable to pay duty, redemption fine and penalties. As regards, the refund of the amount of the duty is hit by the doctrine of unjust enrichment, Ld. Consultant fairly submits they are not able to proeuce evidenced hence their claim is restricted only to the refund of redemption fine and penalties. The rejection of the refund claim of the amount of redemption fine and penalty seems to be incorrect, on the face of the law as settled by the division bench of the Tribunal in the case of J.N.P. Impex Vs. C.C. [2002 (143) E.L.T. 630(Tri.Del.)]. The Division Bench in that case held as under;-
"We have perused the records and have considered the submissions made by both sides. The rvenue authorities would appear to be right in rejecting the documents produced by the appellant. Commercial transactions should establish their credibility by indicating relevant particulars in the documents. The transaction also related to goods worth over Rs. 15 lakhs. The doucemnts produced do not contain necessary details. In these circumstances, the lower authorities were right in rejecting the documents. Therefore, we uphold the rejection of the appellant's claim for return of excess duty paid by them. However, the lower authorities were clearly in error in not giving the appellant the benefit of reduction of fine and penalty by this Tribunal. These did not attract the provisions relating to unjust enrichment. The excess fine and penalty was required to be returned to the appellant immediately on the passing of the order of the Tribunal. Accordingly, it is ordered that the excess redemption fine of Rs.2 lakhs and excess penalty of Rs. 1 lakh already paid by the appellant shall be returned to them without any further delay".
It can be seen that the above reproduced portion that the issue involved in this case of J.P.N. Impex (supra) was the same, as is before me.
6. Accordingly, respectfully following the decision of the division bench, I find that the impugned orders are liable to be set aside and I do so, to the extent they rejected the refund claim of the appellants on the question unjust enrichment in respect of redemption fine and penalty. The appellants claim for refund of the amount and redemption fine and penalty needs to be upheld and I do so. The lower authorities are directed to refund the amount of redemption fine and penalty to the appellant.
(M. V. Ravindran) Member (Judicial) Sm 4