VENKATESH KARRIERS LIMITED Vs. COMMISSIONER OF CUSTOMS JAMNAGAR

JUDGEMENT

(1.) THE facts of the case, in brief, are that M/s. United Shippers Limited, Mumbai are shipping agents and have filed a bill of entry No. F -1 dated 17.03.2009 for payment of duty of ship's bunker stores and coastal conversion of the ship MV Jag Vikas'. The duty was assessed on provisional basis and Rs. 18,28,849/ - was paid by them towards the duty liability. On finalization, it was found that Rs. 3,18,976/ - were paid in excess and the same were claimed by the Appellants as refund by filing an application dated 17.03.2009. The sanctioning authority while issuing order in original, sanctioned the refund but transferred the same to Consumer Welfare Fund. Commissioner (Appeal), while deciding the appeal upheld the order in original. Hence the present appeal.

(2.) THE main contention of the Appellants is that the refund was claimed on re -export of ship stores, the ship from coastal run to foreign run, is deemed to be draw back of the duty under, Section 74 read with Section 88 of the Customs Act, 1962 and therefore, the principle of unjust enrichment is not applied to such refunds. The refund was for the excess duty paid by them on finalization of provisional assessment. They also pointed out that the same issue was decided in favour of them by the earlier Commissioner (Appeal) vide his order in appeal No. 122/JMN/2008 dated 15.05.2008. The relevant portion of this order is as follows:

(3.) I find that it is worth while going through the order of the Tribunal in the case of Commissioner of Customs, Kandla v. Ambica Maritime Limited, 2007 (220) ELT 887 (Tri. Ahmd.). The relevant portion is as below: