WAVIN INDIA LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The issue involved in this appeal, filed by M/s. Wavin India Ltd., is whether the bar of unjust enrichment is applicable to the refund of Customs duty claimed by them.

(2.) Shri Lajja Ram, learned Advocate, submitted that the Appellants had placed order for the purchase of 5,000 M.T. of PVC Suspension Grade K65 -67 with M/s. Fina Chem International Company; that they filed Bill of Entry with the Kandla Customs on 8 -8 -1985; that the vessel Ocean Star had encountered rough and moisturous weather during voyage and the cargo of PVC resin was damaged; that after exchange of correspondence, Deputy Collector, Customs, under Order -in -Original No. KDL/06/DC/88, dated 28 -1 -88 ordered abatement of duty on account of damage of the goods by reducing the value of the goods to the extent of 30%; that as a consequence of the said Order, the Appellants preferred a refund claim of Rs. 45,38,280.72 on 18 -3 -1988. The learned Advocate also mentioned that Collector (Appeals), under Order -in -Appeal No. 3161/88, dated 29 -8 -88, rejected their appeal for enhancing the abatement in value; that the Tribunal also vide Final Order No. 773/1991 -A, dated 30 -9 -91 had held that the Department was justified in giving 30% reduction in value; that the Tribunal vide Miscellaneous Order, dated 8 -9 -92 directed the Collector to implement the Tribunal's Order, dated 30 -9 -91 within one month.

(3.) The learned Advocate submitted that the present case is a case of abatement of duty on damaged and deteriorated goods under Section 22 of the Customs Act; that the provisions of this Section dealing with the abatement of duty on damaged or deteriorated goods is different than the law relating to refund under Section 27 of the Customs Act; that as per Section 22, if the imported goods had been damaged at any time after they had been unloaded but before they were examined by the proper officer, the rate of duty would be applied to the reduced value of goods; that if the decision is taken by the Department before the clearance of the damaged goods, the duty will be collected on the basis of reduced value of the damaged goods and if duty has already been paid before clearance, it will be adjusted in terms of provisions of Section 22 of the Act; that even if the dispute is settled subsequent to the removal of the goods and duty has been paid on unabated value, then also the matter remains one of readjustment; that under Section 2(2) of the Act, assessment includes re -assessment and such adjustment/readjustment will be a part of the assessment procedure; that thus the provisions relating to refund of duty under Section 27 are not applicable to the claim for abatement of duty on damaged or deteriorated goods under Section 22; that all claims for refund have to be filed in their prescribed form within the prescribed period of limitation; that no such procedure is prescribed for abatement of duty under Section 22. He referred to Misc. Order dated 8 -9 -92 by which the Tribunal directed the Collector to implement the abatement order and not 'refund' as goods were damaged.