Customs, Excise and Gold Tribunal - Mumbai
Cc vs Indian Smelting And Refining Co. Ltd. on 15 July, 1998
Equivalent citations: 1999(80)ECR407(TRI.-MUMBAI)
ORDER P.C. Jain, Member (T)
1. Matter called. None for the respondents. We have heard the learned JDR Sh. S.N. Ojha in support of its appeal.
1.2. Briefly stated the facts of the case are as follows:--
The respondents herein imported certain goods which were charged, inter alia, to auxiliary duty at the rate of 45%. However, later on, the appellants filed a refund claim on the ground that auxiliary duty in excess of 5% was exempted under notification No. 123/92-Cus. dtd. 1.3.1992. The goods imported by the respondents herein were consumed by them in manufacture of some other commodity (Aluminum alloys) in their own factory. The original authority denied the refund claim on ground of unjust enrichment referred to in Section 27 of the Customs Act, 1962.
1.3. The lower appellate authority however allowed the appeal of the respondents herein on the ground that the concept of unjust enrichment does not reply to goods captively consumed in view of Bombay High Court's Judgement in the Case of M/s. Solar Pesticides v. Union of India and two other judgements namely of Madras High Court and Calcutta High Court. Hence this appeal by Revenue.
2.1. Learned JDR Sh. S.N. Ojha, submits that there is a conflict of opinion amongst various High Courts regarding granting of refund on the question of unjust enrichment in case of captively consumed goods. In this connection, contrary to the judgement relied upon by the lower appellate authority, learned JDR cites the judgement of Madras High Court Division Bench in the case of C.C.E. v. Indo-Swiss Synthetic Gem Mfg. Co. Ltd. reported in 1996 (13) RLT 379 Madras. He therefore submits that the matter may be kept in abeyance in view of the fact that the question is now before the Apex Court.
3. We have carefully considered the plea of the Learned JDR. We observe, the matter originates from the Customs Commissioner, Bombay. Respondent's factory is also located in Bombay. Therefore the judgement of the Bombay High Court would govern the subject case. Bombay High Court in the case of Solar Pesticides (supra) has clearly ruled in favour of the respondents which have been relied upon by the lower appellate authority. Accordingly we dismiss the appeal of the Revenue.
(Dictated in the open Court).