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1 - 4 of 4 (0.26 seconds)Commissioner Of Customs, Nhavasheva vs M/S. Ktr Coupling P. Ltd on 13 February, 2008
5. The short landing of one package is an admitted fact on record. Therefore, it cannot be denied that the amount pertains to the duty paid for the goods that did not exist at the relevant time. Since there cannot be a buyer for the non-existent goods, it is normal logic that the duty could also not have been passed on to a non-existent buyer. The Tribunal in the case of M/s. Godrej and Boyce Mfg. Co. Ltd. vs. Collector of Customs, Mumbai reported in 2001 (134) ELT 429 (Tri. Mumbai), in an identical situation, has observed as under:-
The Champdany Industries Ltd. vs Commr. Of Customs (Airport) on 20 December, 2005
The then Commissioner (Appeal) has set aside the order in original and directed the Assistant Commissioner to consider the refund claim on merit within 45 days of the receipt of his order. The Assistant Commissioner passes the order after Eight years and rejects the refund claim of the party. Commissioner (Appeal) in the impugned order also rejects the appeal of the party and upholds the order of the lower authority. The Advocate submits that when the then Commissioner (Appeal) in 1995 has accepted the appeal of the appellant, the option opened to the Department was either to go in appeal against that order or follow the order passed by the Commissioner (Appeal). The advocate submits that they have paid the duty on 4th January, 1990 and claimed the refund of the duty in April, 1990. There is no dispute as regards the non arrival of the consignments as Commissioner (Appeals) findings in this regard is very specific. The Lower Authority also does not dispute that the consignment has not arrived at that time. In view of this he submits that their refund claim may be allowed. The Ld. Advocate relied upon a decision of the Tribunal in the case of Godrej & Boyce Mfg. Co. Ltd. v. Collector of Customs, Mumbai wherein Tribunal has held that unjust enrichment-duty paid in Page 0266 respect of goods that never arrived in India -no question arises that duty has been passed on any other person - Section 27(2) of the Customs Act, 1962.
Commissioner Of Customs, Nhavasheva vs M/S. Krbl Ltd on 13 February, 2008
7. I have examined the position. The short landing of the two containers is an admitted fact on record. Therefore, it cannot be denied that the amount pertains to the duty paid for the goods that did not exist at the relevant time. Since there cannot be a buyer for the non-existent goods, it is normal logic that the duty could also not have been passed on to a non-existent buyer. The Tribunal in the case of M/s. Godrej and Boyce Mfg. Co. Ltd. Vs. Collector of Customs, Mumbai reported in 2001 (134) ELT 429 (Tri. Mumbai) in an identical situation, has observed as under:-
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