SIDDHI VINAYAK STEEL Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) HEARD both sides. The appellant filed this appeal against Order -in -Appeal No. 513/2006/MCH/AC/Gr. IV/06, dated 17 -10 -2006 whereby the ld. Commissioner (Appeals) has upheld the lower adjudicating authority's order.

(2.) BRIEFLY stated facts of the case are that the appellant filed a refund claim for Rs. 12 lakhs which was deposited by them in pursuance to Hon'ble Bombay High Court. SUB working on intelligence that certain goods were illegally imported through Chennai port under D.E.E.C. licence to local market in Mumbai. Accordingly, 30 MT belonging to appellant and lying at Shreenath Warehouse were seized. The appellant challenged the seizure of the goods by filing a writ petition before the Hon'ble Bombay High Court. The Hon'ble High Court in writ petition No. 1373/2001, dated 21 -6 -2001 directed the department to issue show cause notice to the appellant on pre -deposit of Rs. 12 lakhs. Accordingly show cause notice was issued against the appellant and Commissioner (Import) vide Order No. 8/2003/CAC/CC -1/AH, dated 27 -1 -2003 adjudicated the case. He ordered the confiscation of the goods under Section 111(d). However, he redeemed the goods on fine of Rs. 2,15,000/ -, and payment of duty of Rs. 13,17,733/ - and also imposed penalty of Rs. 1 lakh. The appellant challenged the order before this Tribunal on the ground of jurisdiction. This Tribunal vide Order No. C/171, 204, 286/2003, dated 23 -2 -2004 [ : 2004 (166) E.L.T. 324 (Tri. -Mum.)] disposed of the case on point of jurisdiction. The department challenged the same, before the Hon'ble High Court of Bombay. Vide order in Customs Appeal No. 25 of 2004, dated 24 -8 -2005 the Hon'ble High Court dismissed the department's appeal. Consequent to that the appellant filed this refund claim. Lower adjudicating authority sanctioned the refund claim of Rs. 12 lakhs in pursuant to Hon'ble High Court order dated 21 -6 -2001, however, credited the same to Consumer Welfare Fund in terms of Section 27(2) of the Customs Act, 1962 on the ground that appellant failed to discharge the onus that incidence of duty has not been passed on. Aggrieved by the same, the appellant filed appeal before the Commissioner (Appeals) who upheld the lower adjudicating authority's order. Hence the appeal.

(3.) THE ld. A.R. reiterates the finding of the lower authority and also contended that as per the Hon'ble Supreme Court decision in the case of U.O.I. v. Jain Spinners Ltd. - : 1992 (61) E.L.T. 321 (S.C.) held that the doctrine of unjust enrichment would apply to the duty deposit also. The department also placed reliance on Pride Foramer v. CC - : 2006 (200) E.L.T. 259 : 2008 (12) S.T.R. 657.