COMMISSIONER OF CUSTOMS, AHMEDABAD Vs. MAHALAXMI EXPORTS

JUDGEMENT

(1.) THIS appeal by revenue is against the order in appeal No. 19 (19 -Ahd)Cus/Commr(A)/Ahd dated 27 -3 -2006, which upheld the order of confiscation but at the same time , granted refund to the respondent in respect of the amount paid during the pendency of the appeal proceedings. Respondent is absent despite notice. I take up the case in the absence of the respondent as the issue is in a narrow campus.

(2.) CONSIDERED the submissions made by the learned SDR and perused record.

(3.) THE issue involved in this case is regarding the amount deposited by the respondent during the course of investigation before the authorities. From the record it transpires that the show cause notice was issued for payment of customs duty under Section 28 of the Customs Act for the goods for which were clandestinely cleared by the respondent herein. During the pendency of the investigation, the respondent deposited the entire amount with the authorities. The adjudicating authority confirmed the demand under Section 28 and also imposed penalty. The respondent preferred an appeal before the first appellate authority who held that confirmation of demand of duty under Section 28 is not correct and set aside the same. After confirmation of demand has been set aside by the Commissioner (Appeals) the respondent preferred an application for refund of the amount deposited by him with the authorities during the course of investigation. The adjudicating authority rejected the refund on the ground of unjust enrichment. On appeal, the Commissioner (Appeals) held in favour of the respondent which is as under :