Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Import) vs Marico Ltd on 16 November, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II Application No.C/S/1535/10 APPEAL No.C/546/10 (Arising out of Order-in-Appeal No.90/2010/MCH/AC/Gr.VII/ 2010 dated 28/04/2010 passed by Commissioner of Customs (Appeals), Mumbai) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, 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 : 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? ========================================
Commissioner of Customs (Import) Mumbai Appellant Vs. Marico Ltd., Respondent Appearance:
Shri.Navneet, Addl. Comm. (AR) for appellant Shri.Vishal Agarwal, Advocate, for respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R.Chandrasekharan, Member (Technical) Date of Hearing : 16/11/2011 Date of Decision : 16/11/2011 ORDER NO Per: Ashok Jindal
1. The Revenue has filed this appeal on the ground that in the impugned order, the Commissioner (Appeals) has made an observation that the principles of unjust enrichment would not apply while refunding fine and penalty relying on the decision of Honble High Court of Bombay in the case of United Spirits Ltd., Vs. CC (Imports),Mumbai reported in 2009-TIOL-316, after considering the decision of Honble apex Court in the case of Sahakari Khand Udyog reported in 2005 (181) ELT 328 (SC). As there is no specific provision in law for refunding fine and penalty wherever unjust enrichment is applicable or not, therefore the decision cannot be relied upon.
2. Heard the Ld. DR and perused the records placed before us.
3. After perusal of the record, we find that the appeal itself can be disposed of at this stage. Therefore, after disposing of the stay application of the department by dismissing we have taken up the appeal itself for final disposal.
4. We have gone through the relevant paragraph of the impugned order, which is reproduced here as under:-
I have considered the submissions. The adjudicating authority observed from the balance sheets and CAs certificate that the encashed bank guarantee was reflected in the balance sheets from the FY 2005-06 upto 2007-08 as receivable and hence came to a conclusion, rightly in my opinion, that its incidence was not passed on. Even otherwise the issue whether the principle of unjust enrichment should apply to a case of refund of fine or penalty is no more res integra. Mumbai High Court (Division Bench) in the case of United Spirits Ltd., (2009-TIOL)-316) held that the principle would not apply while refunding fine and penalty. While delivering the judgement the Court has considered all aspects of the Supreme Courts judgement in Sahakari Khad Udyog. Therefore, the subject refund of fine and penalty could not have been rejected solely on the ground of unjust enrichment. In other words, sanction of refund of fine and penalty by the adjudicating authority was in order.
5. The Commissioner (Appeals) has given a clear cut findings that the applicant has passed the burden of unjust enrichment by producing their balance sheets and CA certificate and the Commissioner (Appeals) has given additional observation relying on the decision of the United Spirits case cited supra that in the case of refund of fine and penalty unjust enrichment is not applicable.
6. As the Revenue has not challenged the part of the order wherein the Commissioner (Appeals) has held that the applicant has passed burden of unjust enrichment. Therefore, we do not find any merit in the Revenues appeal, the same is dismissed.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) pj 1 3